State Of U.P. vs Rajesh Singh
2023 Latest Caselaw 26545 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Reserved on 19.9.2023
 
Delivered on 27.9.2023.
 
Neutral Citation No. - 2023:AHC:188624
 
Court No. - 84
 
Case :- CRIMINAL APPEAL No. - 6270 of 2021
 
Appellant :- State of U.P.
 
Respondent :- Rajesh Singh
 
Counsel for Appellant :- G.A.
 
Counsel for Respondent :- Dinesh Kumar Gupta,Raghawendra Singh
 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard the learned A.G.A. for the State appellant, learned counsel for the accused respondent and perused the record.

This is an appeal under section 14-A(1) of SC/ST Act filed by the State appellant against the judgment and order dated 4.10.2021 passed in S.T.No. 298 of 2009, State Vs. Vasisth Kunwar and another, police station Haldi District Ballia. By the impugned judgement and order, the accused respondent Rajesh Singh was acquitted of the charges under sections 452, 323/34, 504, 506(2) I.P.C. and Section 3(1)(x) of SC/ST Act by the Special Judge, SC/ST Act, Ballia.

As per the facts of the case, the law was set into motion by registering the FIR dated 27.5.2008 on an application moved by first informant Kanhaiya Lal Ram before Schedule Caste and Scheduled Tribes Commission, Jawahar Bhawan, Lucknow. As per the version of the FIR, the first informant belongs to SC/ST community. His son Ashok Kumar had done the labourer work in the field of one Vashishtha Kunwar, the resident of the same village. When Ashok Kumar demanded money for the same, he was asked to come after one week and when he went after one week, he was again asked to come after two days and when after two days Ashok Kumar on 19.2.2008 at 9.00 A.M. went to meet Vashishtha Kunwar he hurled caste based abuses and refused to give money. His son said that it was not fair not to pay the remuneration of work done by him. At the same time Rajesh Singh arrived there and said that it was necessary to teach him a lesson. At this Vashishtha Kunwar came with a baton. He gave a stick to Rajesh Singh also, saying to thrash Ashok Kumar. When being scared Ashok Kumar ran towards his home, he was chased by both the accused persons and both of them entered the house of the first informant. When the first informant asked about the matter, both the accused persons hurled caste based abuses and started thrashing the first informant with the stick and baton. Rajesh Singh put a sickle on his neck and again used caste based abuses. On hue and cry, the wife of the first informant and two sons of the first informant namely Ashok and Jitendra who were inside the house came out, witnessed the incident and rescued the first informant. Many other persons also came there and witnessed the incident. At the time of the incident, Rs. 60/- dropped from the pocket of the first informant were forcibly picked up by Vashishtha Kunwar. He again gave threat to forget the rupees 60/- and the remuneration of work done by his son, otherwise, he would be thrown away after his murder. The report was not written at the police station. He moved applications to various authorities including the SC/ST Commission at Jawahar Bhawan Lucknow and on the basis of this application to the SC/ST Commission, Lucknow U.P. the first information report could be lodged on 27.5.2008 after more than three months of the incident.

After investigation, the chargesheet was filed against both the accused persons under sections 452, 323/34, 504, 506(2) I.P.C. and section 3(1)(x) of SC/ST Act.

Charge was framed by the Additional District Judge/FTC Court No. 3, Ballia against both the accused persons under section under sections 452, 323/34, 504, 506(2) I.P.C. and section 3(1)(x) of SC/ST Act. Both the accused persons denied the charges and pleaded not guilty.

From the prosecution side 4 witnesses of fact were produced P.W.-1 Chhiteshwar son of late Garhi Yadav was produced in the court as independent eye witness. The first informant Kanhaiya Lal appeared as P.W.-2, his both sons Ashok Kumar and Jitendra Kumar Ram appeared in the trial court as P.W.3 and 4 respectively. Superintendent of Police, Sidharth appeared as P.W.-5 and Dr. V.N.Dubey appeared as P.W.-6 in the trial court.

As documentary evidence P.W.-2 the first informant proved his photocopy report as exhibit ka-1. Investigating Officer P.W.-5, Sidharth the then Circle Officer proved site plan as exhibit Ka-2 and the charge sheet as exhibit Ka-3. Dr. V.N. Debey as P.W.-6 proved the medical report of the first informant Kanhaiya Lal as exhibit ka-4.

After the prosecution evidence, the statement of accused Rajesh Kumar Singh was recorded. Till then co accused Vashishtha had died and the appeal was abated against him. Accused Rajesh Kumar Singh denied the prosecution evidence and documents and stated that there was dispute between the first informant/ his son and co accused Vashishtha Kunwar and accused Rajesh Kumar Singh being closed to Vashishth Kumar was falsely implicated on the basis of partibandi.

No evidence was produced by Rajesh Kumar Singh in his defence. After hearing the arguments, the trial court passed the impugned judgment and order dated 4.10.2021 and acquitted accused Rajesh Kumar Singh of the charges under sections 452, 323/34, 504, 506(2) I.P.C. and section 3(1)(x) of SC/ST Act.

The present State appeal has been filed against the judgment and order dated 4.10.2021 on the grounds that the trial court did not properly appreciate the prosecution evidence and decided the case on the basis of conjuncture and surmises. The trial court failed to apply its judicial mind properly while appreciating the evidence of the witnesses. The trial court wrongly recorded variations and contradictions in the statements of the witnesses. On the basis of minor contradictions the entire prosecution case cannot be disbelieved. It is the quality of the witnesses to prove the guilt of the accused and not the quantity of the witnesses. The trial court committed gross error in disbelieving the testimony of the witnesses of the prosecution and gave importance to the defence version. The judgement and order of acquittal of the accused is wholly illegal, perverse and against the weight of the evidence on record, hence, it was prayed to be set aside.

Learned A.G.A. submitted that the delay in lodging the FIR has been very well explained in the report of the first informant itself that when the report of the first informant was not lodged at the police station he moved various applications to the different authorities including one to the SC/ST Commission. On the application moved before this Commission the FIR was lodged on 27.5.2008. Thus, the delay was well explained. The first informant and his sons had fully proved the incident. Formal witnesses proved the documents prepared by them. The Doctor well proved the injuries which were inflicted on the person of the injured by the baton. The present accused respondent also thrashed the first informant. The caste based words were used both outside and inside the house of the first informant, hence, offence under sections 452, 323/34, 504, 506(2) I.P.C. and section 3(1)(x) of SC/ST Act can very well be said to be proved against Rajesh Singh respondent.

Learned counsel for the accused respondent submitted that the only independent witness P.W.-1 Chhiteshwar Yadav did not support the prosecution version and he was declared hostile by the trial court. In his cross examination nothing substantial could come out. The rest 3 witnesses of fact are the father and his two sons, who are highly interested witnesses. The incident is 15 years old. The main accused has died. There is no evidence on record against the present accused. He claimed the impugned judgment and order to be a well discussed judgment and order. The prayer was made to dismiss the appeal.

If we go through the judgment of the trial court, the trial court opined that the motive of non payment of the labourer work done by Ashok Kumar, the son of the first informant was proved by the prosecution. The trial court also found that the witnesses were the interested witnesses, on this ground only their statements cannot be discarded or disbelieved.

Discussing the oral evidence of P.W.-2, the first informant and P.W. 3 and 4, both the sons of the first informant, the trial court did not find their evidence reliable. Though the trial court found the injuries of the first informant proved by the doctor, P.W.-6 Sri V.N.Dubey, but it was found that the prosecution failed to prove these injuries of the first informant inflicted by the present accused respondent. The trial court did not find the offence under section 3(1)(x) of SC/ST Act also proved against the present accused respondent and thus, the trial court finding the case not proved against accused respondent Rajesh Kumar Singh acquitted him of charges under sections 452, 323/34, 504, 506(2) I.P.C. and section 3(1)(x) of SC/ST Act.

As this Appeal is against the judgement and order of acquittal by the trial court, it is to be seen whether the reasoning of the trial court is well founded and acceptable with sound reasoning or not ?

The appellate court can interfere with with judgment of the trial court in case the evidence on record had not been properly appreciated by ignoring the material facts. A paramount consideration of the court would be to ensure that the miscarriage of justice is prevented. In a case where admissible evidence is ignored, a duty is cast upon the appellate court, to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether the accused really committed the offence or not. Thus the principle to be followed by the appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and the convincing materials have been unjustifiably eliminated in the process, it would be compelling reasons for interference by the appellate court.

If we go through the evidence on record in the case in hand admittedly the only independent witness PW -I has not supported the prosecution version. PW- 2 the first informant and PW -4 his son Jitendra Kumar Ram have not seen the incident that took place in the House of co-accused Vasishtha Kunwar. These two witness, PW-2 and PW-4 are said to have witnessed the incident that took place outside and inside of their house only. PW-3 Ashok Kumar who is the only witness of the incident that took place at the House of the co-accused Vasishtha Kunwar has stated in his statement that after hurling cast based abuses by both the accused persons he was chased by both of them from the House of the co-accused Vasishtha Kunwar upto his house. When they entered his house, co-accused Vasishtha Kunwar assaulted his father with two blows of baton and when his father fell down he was again assaulted with one blow of baton. The present accused respondent Rajesh Kumar Singh is said to have put the sickle on the neck of the first informant and is said to have given threat of life. It is again stated that at the time of going back both the accused persons again hurled caste based abuses and gave threat of life. Thus, according to the only eye witness of the incident which took place at the house of Vashishtha Kunwar, he was not thrashed by any of the accused person in the house of Vashishtha Kunwar and in the house of the first informant the first informant was thrashed at the hands of Vashishtha Kunwar only. There is no allegation that the present accused thrashed the first informant or any one in their house.

If we go through the statement of P.W.-2 the first informant who is not the eye witness of the incident that took place at the house of the co accused Vashishtha Kunwar, he has also not stated in his statement that his son was thrashed at the house of Vashishtha Kunwar. The first informant has stated that it was only he who was thrashed by the accused persons and sickle was put on his neck by the present accused. This witness has clearly stated in his statement that in the house of Vashishtha Kunwar his son was not thrashed by anyone. P.W.-4 who did not witness the incident at the house of Vashishtha Kunwar has also stated that his father was thrashed at the hands of both accused respondents but in the statement of P.W.-3 who claims himself to be the eye witness of the incidents both at the house of accused Vashishth and at the house the first informant has clearly stated in his statement that the father was inflicted 3 assaults of the baton and all these 3 assaults were made by Vashishtha Kunwar. Doctor has also found two injuries of baton on the person of the first informant and has opined in his statement that the two injuries of injured Kanhaiya Lal could be inflicted only by same and one baton as size of both the injuries was the same. Rest 3 injuries found on the person of the injured were the complaint of pain. Thus, it is clear that the injuries inflicted to the first informant were caused by Vashishtha Kunwar, the main accused. It was not the present accused respondent who assaulted the first informant or his son.

So far as the offence under section 3(1)(x) of SC/ST Act is concerned though it is the allegation that caste based abuses were hurled by the accused persons but admittedly the genesis of the incident is the non payment of remuneration of labourer work done by Ashok Kumar, the son of the first informant so the caste based words, said to have hurled by the accused persons, cannot be said to be hurled by them because of the first informant or his son being scheduled caste and scheduled tribe community.

So far as the offence under sections 504 I.PC. is concerned, Ashok Kumar is said to have been hurled abuse at the house of Vashishtha Kunwar. The said incident is admittedly not seen by P.W.-2 the first informant and P.W.-4 his son Jitendra Kumar. The witness of this incident is only P.W.-3 Ashok Kumar and in his statement he has not mentioned any abuse hurled by the present accused to him when he was at the house of Vashishtha Kunwar. P.W.-3 Ashok Kumar has only stated in his statement that he was chased after using caste based words, thus, no abuse is said to be hurled by the present accused at the house of Vashishtha Kunwar. Admittedly, the first informant is said to have filed two more cases of SC/ST Act against other villagers. In the present case it is admitted fact that the first informant received Rs. 6250/- from the State Government. Admittedly main accused is Vashishtha Kunwar against whom there was motive of committing offence. There was no motive before the present accused to commit any offence against the first informant or his sons. Admittedly the present accused respondent neither thrashed the first informant nor he is said to have hurled wild abuses. The caste based words are also not said to have hurled with intention to humiliate the first informant or his son being their to be members of SC/ST community.

Apart from this, the original report lodged by the first informant has not been placed before the court. Only the photocopy of the letter sent to the SC/ST Commission, Lucknow was produced in the trial court and that photocopy is said to be proved by P.W.-2 the first informant and has been exhibited. As per the law the photocopy of any document, if the original has not been produced, at the time of evidence, cannot be proved or exhibited by the witness. Chik FIR has also not been formally proved by a person registering the same. Again the original medical examination report of the victim was also not produced before the trial court, it was only the photocopy of the report which was proved by the doctor, as is very well stated in his statement that he had proved the photocopy of the original medical report. No medical register was ever produced in the trial court, so the photocopy of the medical report can also not be said to be proved according to law. Hence in the opinion of the court, the evidence on record is not enough to prove the guilt of the present accused respondent. The trial court has rightly reached at the conclusion of the acquittal of the accused respondent. There is no proper ground to interfere with the finding of the trial court.

The present State Appeal being devoid of merits is liable to be dismissed.

Appeal is accordingly dismissed.

Order Date :- 27.9.2023

Gss