State Of U.P. vs Harprasad And Another
2024 Latest Caselaw 20083 ALL

Allahabad High Court

State Of U.P. vs Harprasad And Another on 31 May, 2024

Author: Rajiv Gupta

Bench: Rajiv Gupta

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 

 

 
    								       A.F.R.
 
					      Reserved on 16.05.2024
 
					      Delivered on 31.05.2024
 
	              Neutral Citation No. - 2024:AHC:97444-DB
 

 
Court No. - 45
 

 
Case :- GOVERNMENT APPEAL No. - 3433 of 1985
 

 
Appellant :- State of U.P.
 
Respondent :- Harprasad And Another
 
Counsel for Appellant :- A.G.A.,Sanjeev Kumar Khare
 
Counsel for Respondent :- N.K.Saxena,Rakesh Kr. Varma
 

 
Hon'ble Rajiv Gupta,J.
 

Hon'ble Shiv Shanker Prasad,J.

(Delivered by Hon. Rajiv Gupta,J)

1. Heard Sri Arun Kumar Pandey, learned AGA assisted by Sri Kamlesh Kumar Nishad, learned brief holder for the State-appellant and Sri Sanjeev Kumar Khare, learned counsel for the accused-respondents.

2. The instant Government Appeal has been filed against the judgment and order dated 4.9.1985 passed by 4th Addl. Sessions Judge, Hamirpur in Session Trial No. 246 of 1978 (State Vs. Halkey and 3 others) arising out of Case Crime No. 120 of 1978, under Section 307 IPC, Case Crime No. 121 of 1978, under Section 25 Arms Act and Case Crime No. 122 of 1978, under Section 25 Arms Act, by which the accused-respondents have been acquitted of all the charges framed against them.

3. During pendency of the said appeal, accused-respondent No. 1 Har Prasad had passed away, as such the instant government appeal qua appellant No. 1 has been abated vide order dated 10.12.2021 passed by this Court. Now the appeal survives only in respect of accused-respondent No. 2 Lal Diwan.

4. Shorn of unnecessary details, the prosecution case as unfurled in the first information report dated 15.8.1978 is that one Ali Hasan, police constable of Police Station Rath, District- Hamirpur has lodged a first information report based on the recovery memo, wherein it is alleged that on the fateful day, he alongwith constable Suresh Singh and constable Krishna Swaroop had set out for picketing duty after getting issued one rifle alongwith 30 cartridges each. After completing the picketing duty in village Galiha they proceeded towards village-Mawai, however as soon as they crossed the boundaries of village-Galiha and reached near the canal culvert, they were informed by the informer that Halkey Darji of village- Akauna alongwith his companions, armed with illegal weapons is proceeding towards village-Mawai. Believing the said information, they picked up three witnesses, Shri Chandra, Jhagru and Maheshwari, who were sitting on the culvert alongwith informer proceeded towards village-Mawai. As soon as they reached near the grove of Aadhar at about 6 p.m., the miscreants, who were sitting in the grove stood up. The informer pointed towards them to be the miscreants. The police party exhorting, proceeded further. In the meantime one of the miscreant fired a shot upon them and all the miscreants proceeded towards the east, however the shot fired by the miscreants narrowly missed the target. The police party tried to chase them, however again the miscreants, with an intention to kill them, resorted to firing, consequent to which, they in order to defend themselves also fired one shot from their respective rifles. In the meantime, one of the shot fired by miscreants hit constable Suresh Singh who after receiving injuries fell down. In the meantime, Har Prasad and Lal Diwan, who were having guns tried to escape towards Suklahari, whereas the other two miscreants, who were armed with gun and country made pistol ran towards Mawai, who were chased and two of the miscreants were apprehended, whereas other two miscreants armed with guns succeeded in running away. On interrogation, the arrested accused-persons disclosed their names to be Halkey son of Paltu, R/o Akauna and other name disclosed to be Narayan son of Gyasi, R/o Village-Kurra of Police Station- Rath. On their search being made, SBBL gun were recovered from the right hand of Halkey alongwith three cartridges and from the right hand of apprehended accused Narayan, a country made pistol of 12 bore was recovered alongwith two cartridges, which were taken in possession by the police and sealed in a bundle. On the basis of said recoveries, fard recovery memo was prepared and the injured constable was taken at the police station- Akauna. On the basis of said recovery memo, a first information report is said to have been lodged at police station- Rath, District- Hamirpur registered vide Case Crime Nos. 120, 121 and 122 of 1978 respectively under Section 307 IPC and 25 Arms Act, which has been proved and marked as Exbt. Ka-1. The Corresponding G.D. entry was also prepared vide G.D. Report No. 22 at 9.10 p.m., which has been proved and marked as Exbt. Ka-9 and 10.

5. Thereafter, the arrested accused persons were lodged in lock-up and the investigation of the said case was entrusted to (P.W.-7) Gaya Prasad in whose presence the FIR was registered who thereafter set out for the place of incident alongwith Ali Hasan and recorded the statement of constable Ali Hasan and made spot inspection of the case and prepared its site plan, which has been proved and marked as Exbt. Ka-12. During spot inspection, the Investigating Officer recovered seven cartridges alleged to be fired by miscreants, which were taken in possession and prepared its recovery memo, which has been proved and marked as Exbt. Ka-13, however blood stained earth could not be taken as on account of heavy rain the blood had already been wiped out. On 20.8.1978 statement of S.O. V.K. Sinha was recorded who informed that the physical condition of constable Suresh is serious and he is admitted in Hallet Hospital, Kanpur. On 30.8.1978 statement of Shri Chand (P.W.-3) and Jhagru (P.W.-2) was recorded. On 30.8.1978, itself a death memo was received from the office of Deputy C.M.O., Kanpur informing about the death of injured constable Suresh, which was reduced in writing vide G.D. Report No. 9 at 8.55 a.m.

6. Thereafter, on the basis of said information, P.W.-4 Netrapal Singh, S.O. Police Station Swarup Nagar reached at the hospital and conducted the inquest on the person of the deceased and prepared the inquest memo, which has been proved and marked as Exbt. Ka-4. At the time of inquest other relevant documents including challan-nash, photonash, chitthi R.I., chitthi C.M.O. and sample sealed were prepared, which has been proved and marked as Exbt. Ka- 5, 6 and 7. After conducting the inquest, the body was wrapped and sealed in a cloth and despatched for post-mortem.

7. An autopsy was conducted on the person of the deceased on 30.8.1978 at 4.50 p.m. and the doctor has noted the following injuries on the person of the deceased :-

1. Healing wound with granulation tissue on the dorsal aspect of the right forearm near the wrist 1.5 cm x 1 cm.

2. Healing wound with granulation tissue 1 cm x 0.75 cm on the dorsal aspect of right forearm 2 cm above injury no. 1.

3. Healing wound 1 cm x 1 cm with granulation tissue on right forearm on dorsal aspect 9 cm above injury no. 2.

4. Healing wound 1 cm x 0.75 cm of flexor aspect of right forearm 7 cm above the right wrist joint.

5. Healing wound 1 cm x 0.75 cm on flexor aspect of right forearm 8 cm above injury no. 4 with a scab.

6. Healing wound with granulation tissue on the right iliac chest 2 cm x 1 cm, 4 cm lateral to right anterior superior iliac spine on probing abdominal cavity deep directed from right to left and slightly upwards and backwards.

7. Healing wound granulation tissue 2 cm x 1 cm, 6 cm above & lateral injury no. 6, abdominal cavity deep directed from right to left and backwards.

8. Healing wound 2 cm x 1.5 cm with granulation tissue in the right hypo condition just below the costal margin in the anterior axillary line. Abdominal cavity deep directed backwards and medially.

9. Healing wound 1.5 cm x 1 cm with granulation tissue on right side lower part of chest 3 cm above and lateral to injury no. 8, directed backwards and medially muscle deep.

10. Healing wound 2 cm x 1.5 cm on right lumbar region back 4 cm, above the lumbosacral joint abdominal cavity deep directed from left to right, downwards and forward in direction to injury no. 6.

8. While making internal examination, the doctor has recovered three pieces of metallic pellets recovered from spine, one metallic pellet recovered from muscles of back in the para spinal region under injury No. 1 mesentery found stitched at several places with pieces of pus present, one and a half litre blood mixed with pus and faecal matter in the abdominal cavity. The cause of death has been noted to be septicaemia and toxemia as a result of injuries described.

9. On 01.9.1978 an information about the death of constable Suresh was received at the police station and the case was converted from Section 307 IPC to 302 IPC. After concluding the investigation and recording the statement of other relevant witnesses, charge-sheet was filed against all the accused persons on 8.10.1978 under Section 302 IPC and further against Halkey and Narayan a charge sheet was also filed under Section 25 Arms Act, which has been proved and marked as Exbt. Ka-14, 15 and 16. Relevant sanction for prosecuting Halkey and Narayan u/s 25 Arms Act was also obtained from the District Magistrate.

10. On submission of the charge sheet, learned Magistrate had taken cognizance and since the case was exclusively triable by the court of Sessions, made over the case to the court of Sessions for trial, where it was registered as Session Trial No. 246 of 1978 (State vs. Halkey and 3 others). The trial court framed the charges against all the accused-respondents under Section 302 read with Section 34 IPC on 07.09.1979 and further against Halkey and Narayan u/s 25 Arms Act. The said charges were read out and explained to the accused-respondents in hindi, who abjured the said charges, pleaded not guilty and claimed to be tried.

11. The trial court thereafter recorded the statement of seven witnesses, out of them P.W.-1- Krishna Swaroop, P.W.-2 Jhagru and P.W.-3- Shri Chand are the witnesses of fact, whereas P.W-4- Netrapal Singh, P.W-5- Shyam Swarup, P.W-6- Narayan Das Dwivedi and P.W.-7- Gaya Prasad are the formal witnesses. The Court has also recorded the statement of C.W-1- Shyam Lal Dixit, C.W-2- Ram Sajivan Singh and C.W-3- S.K. Shukla. The accused-respondents in their defence produced D.W.-1- Balak Ram Pandey and D.W.-2- Narottam Kumar.

12. To appreciate the entire evidence and material brought on record during the course of trial it would be apt to discuss in brief the statement of the witnesses.

13. Krishna Swaroop (P.W.-1) is the constable and member of the police party. He, in his statement has stated that on 15.8.1978, he was posted as constable in police station- Rath. Constable Ali Hasan and constable Suresh Singh were also posted at the said police station. At about 4.10 p.m. pursuant to G.D. Report No. 15, they had set out from the police station for picketing duty of village- Galiha. After completing their picketing duty in village-Galiha, they had proceeded towards village-Mawai and when they reached near the culvert of the canal, an information was given by an informer that the gang of Halkey Darji armed with illegal weapon is coming from Mawai. Jhagru (P.W.-2), Maheshwari (not examined) and Shri Chand (P.W.-3) were also sitting on the culvert, who were asked to accompany them as witnesses towards Mawai.

14. It is further stated that when they reached near the grove of Adhar at about 6 p.m., four miscreants were found sitting in the grove, who were pointed out by the informer. The miscreants also saw them and immediately resorted to firing, who were chased. The miscreants with an intention to kill continued the firing, as such they, who were three in numbers, also opened fire from their respective rifles and fired one shot each. The shot fired by the miscreants, hit constable Suresh Singh and he fell down. The miscreants were chased and two of the miscreants Halkey and Narayan present in the Court were arrested, however Lal Diwan and Har Prasad made their escape good towards village- Suklahari, who were armed with guns. From the possession of Halkey, a 12 bore DBBL gun alongwith live cartridges and from the possession of Narayan, a 12 bore country made pistol alongwith cartridges were recovered. The recovered articles were taken in possession and its fard recovery memo was drawn, which has been proved and marked as Exbt. Ka-2 and thereafter injured constable Suresh was brought at the police station on a cot and an FIR was registered on the basis of fard recovery memo on 15.8.1978. The arrested accused Halkey and Narayan were lodged in lockup. However on 30.8.1978 Constable Suresh died in Hallet Hospital, Kanpur.

15. During cross examination, he stated that on the fateful day they had set out for picketing duty at 4 p.m. and they had first reached village- Galiha and thereafter proceeded to Mawai. All the three constables were armed with rifles and none had 12 bore gun. They stayed in Galiha for about half an hour and then they were proceeding to Mawai, where the informer met them. They were in police uniform and not in plain clothes. The witnesses met on the culvert. The informer was not Asharfi and was not acquainted with Asharfi of Mawai. He further stated that prior to the day of incident, he had never visited Mawai. He further stated that he was not aware if there was parti-bandi between Asharfi and Har Prasad. It is wrong to state that information given by the informer was received at the bridge of the canal. He had disclosed to the investigating officer that when they reached near the bridge canal of Galiha, then informer met them. Where they met the informer witnesses were also sitting. The informer first saw the miscreants followed by them and when the informer pointed out towards the miscreants, then they saw the accused sitting there.

16. He has further categorically stated that the witnesses and the informer were unarmed. On exhortation, miscreants fired a shot and then ran away, however they could not see as to who amongst the miscreants fired, nor they could see if it was fired by a country made pistol or a regular gun. As soon as the miscreants fired, they were chased and in their self defence they also opened fire. The witnesses were chased for about 80-90 paces. The miscreants stopped ahead and again fired, which hit constable Suresh and then there was no firing. During this incident, no other villagers reached there and two miscreants ran away towards Suklahari and two miscreants towards Mawai. Two of the miscreants were arrested alongwith country made pistol and gun, which were taken in possession and it's fard recovery memo was prepared at the spot and weapons were sealed, however in the meanwhile constable Suresh was lying in an injured condition. Thereafter, they straightway went to the police station alongwith the recovered articles.

17. He has further stated that prior to the incident, he was not acquainted with Har Prasad and Lal Diwan of Mawai and never went to identify them, who themselves surrendered in the Court. He further denied the suggestion that there was enmity between police personal and Asharfi. The shot fired by them did not hit any of the miscreants. He did not know if there was any enmity between Asharfi on one hand and Har Prasad and Lal Diwan on the other. It is wrong to state that Asharfi had taken them for encounter of Lal Diwan. It is wrong to state that they were in plain dress and armed with 12 bore gun and had gone to kill Lal Diwan. It is wrong to state that the fire made by them, hit Lal Diwan and he in his defence fired a shot. It is also wrong to state that by showing fake recovery from Lal Diwan and Har Prasad, the instant case has been cooked up.

18. Jhagroo (P.W.-2) is another eye witness of the incident. He has stated that he was acquainted with accused persons Har Prasad, Lal Diwan, Halkey and Narayan present in the Court. About two and a half years back, Suresh was murdered at about 7 p.m. At the relevant time, he was sitting on the culvert of the canal alongwith Shri Chand (P.W.-3) and Maheshwari, when three police constables alongwith an unknown person came and asked to accompany them for apprehending the miscreants and when they reached near the grove of Adhar the police constables exhorted, then the accused persons, who were sitting in the grove opened fire from the grove. Suresh Singh was hit by the fire, then police personnels also opened fire and miscreants tried to escape by running away, who were chased by the police personnels and two miscreants were apprehended who disclosed their names to be Narayan and Halkey. Lal Diwan and Har Prasad made their escape good but were identified. From the possession of Halkey, a gun was recovered alongwith cartridges, whereas from the possession of Narayan, a country made pistol alongwith cartridges were recovered, which were sealed in a bundle and the recovery memo was prepared.

19. During cross examination, the said witness stated that village- Mawai is situate at a distance of 3 'kos' from his village and two 'kos' from village-Galiha. P.W.-3 Shri Chand had taken him for the purpose of purchasing bulls and was staying there for the last 2-3 days but did not purchase any bull, however the said factum was not disclosed to the investigating officer. While he was sitting at the culvert, the police reached there. Three police personnels alongwith one unknown person had reached there. They were acquainted with the police constables and the other unknown person was "Asharfi of Mawai". The said witness has further categorically stated that all three police constables were in plain dress and not in uniform. All the three constables were having 12 bore guns and were not having any rifle.

20. He further stated that he understands the difference between a rifle and a gun. From culvert they proceeded towards village-Mawai and when reached near grove of Adhar close to which, the well belonging to Lal Diwan is situate lying in his own chak, where he was present. As soon as they reached near the grove, Asharfi pointed out his presence and police personnel immediately opened fire on him. Lal Diwan received pellets injuries, who thereafter ran towards village-Suklahari. While he was running, the police personnels further made 2-3 fires. While running Lal Diwan in his self defence made a fire, which hit constable Suresh. Thereafter, immediately a cot was called and he was taken to the police station on the cot.

21. He further categorically stated that on the plain paper, his thumb impression was obtained. He further stated that he did not know that there was any enmity between Lal Diwan and Har Prasad on one hand and Asharfi on the other. The said witness further categorically stated that from the side of the police, he earlier appeared as a witness in 2-3 cases and in case of State Vs. Balshan and State Vs. Param Lal, he has already deposed on behalf of the police and he cannot re-collect the other case, in which, he has been made a witness.

22. Shri Chand (P.W.-3) is the another eye witness of the incident and had stated that he was acquainted with the accused Har Prasad, Halkey, Narayan and Lal Diwan present in the Court but is not acquainted with constable Suresh, who has been done to death. About 2 ½ -3 years back at about 6 p.m., constable Suresh was done to death. At the relevant time, he was sitting on the culvert of canal near village- Galiha alongwith Jhagroo and another person of village-Galiha. At about 5.30 p.m., three police constables came and informed that Halkey alongwith some miscreants, who are coming, are to be apprehended, then they proceeded towards Mawai and when reached near the grove of Adhar, all four assailants were sitting there. Seeing the assailants the police constables exhorted then the assailants opened fire. The police personnel told him that Suresh has been hit, however he had not seen the assailants opening fire, then the police personnel chased the miscreants and apprehended Halkey and Narayan, however two other assailants made their escape good. On their search being made, a gun alongwith three cartridges were recovered from the possession of Halkey, whereas a country made pistol alongwith two cartridges were recovered from the possession of Narayan. On the basis of said recoveries, fard recovery memo was prepared and signed by the witnesses and then recovered material was sealed in a bundle and brought at the police station.

23. During cross examination, the said witness stated that 2-3 days prior to the incident, he was staying in Galiha accompanied with Jhagroo (P.W.-2), who had gone to visit their relatives and there was no specific reason for their stay. At the time of incident, apart from two of them, one another person was sitting at the culvert, however till date he could not know his name. He further stated that he did not disclose to the investigating officer that the 3rd person was Maheshwari Khangar of village- Galiha. He further stated that there were three police personnel alongwith unknown person, however he cannot state if the unknown person was Asharfi of village-Mawai. The said witness then pointed out towards the accused persons Har Prasad, Lal Diwan and stated that he is not acquainted with them as he had never seen them earlier and only after the incident, he had seen the accused persons in the lock up, because he was also involved in criminal case and was put in the lock up, where he had met the two assailants who disclosed their names to him. The police personnels took him towards south of the culvert. He further stated that he did not disclose to the investigating officer that at the relevant time Har Prasad and Lal Diwan of village-Mawai, who were armed with guns ran towards village-Suklahari and he cannot state as to how the investigating officer recorded his such statement. It is further stated that when they were sitting on the culvert the sun had not set and from there they reached the grove within half an hour.

24. He further stated that police personnels were not armed with guns but with rifles and that he understands the difference between a rifle and a gun. On the exhortation made by the police personnels miscreants fired a shot then police personnels fired. The first fire made by miscreants did not hit anyone. On the firing made by police personnels, the miscreants did not run away but they also fired. The miscreants in the second round, made four fires but police did not made any fire. The police personnel fired upon the assailants only when they were sitting in the grove, however when the miscreants started running away, then the police personnel did not make any fire. He further stated that he had stated to the investigating officer that "when the miscreants proceeded towards the east, then they narrowly escaped by the firing and tried to chase them, the police personnels then in their self defence fired one shot each from their rifles, which is correct. The statement given today in Court that "while running police personnels did not open fire has inadvertently been stated by him. At the place of incident in all four fires were made. Three were made by police personnels and four by the miscreants. He was not accompanying Suresh who was 10-12 paces ahead of him. When firing was made in the grove then Suresh was not hit. He is not aware if any miscreants was hit by fire. When miscreants fired to run away, then Suresh chased them for about a furlong towards village Sukhlahari. Miscreants were at a distance of about 2 furlongs when the fire hit Suresh. The police was chasing the assistants while they were running away, then Suresh was hit by a fire. Two miscreants were running towards Mawai, whereas two other were running towards Suklahari. On Suresh being hit then a cot was called from Mawai and he was taken to the hospital.

25. It is further stated that when fire was made from the grove, then it was dark. As soon as the cot reached there, Suresh was immediately taken to the police station and he accompanied them at the police station. A paper was scribed at the police station which was signed by him. He further stated that prior to this incident, he has not been a police witness in any case, however he is an accused in a case under Section 307 IPC and also involved in two other cases. He further denied the suggestion that he had not seen the incident and under the pressure of the police, he is falsely deposing.

26. Netrapal Singh (P.W.-4) at the relevant time was posted as S.I. Swaroop Nagar, Kanpur and on 30.8.1978 had received a memo from the office of Deputy Chief Medical Officer, Kanpur informing about the death of constable Suresh Singh, which was registered vide G.D. Report No. 9 at 8.55 a.m. and proved and marked as Exbt. Ka-3. On getting the said information, he reached the Hallet Hospital and conducted the inquest on the person of the deceased and prepared the inquest report, which has been proved and marked as Exbt. Ka-4. Alongwith inquest report, he also prepared other relevant documents like photo-nash, challan-nash, chitthi R.I., chitthi C.M.O., which has been proved and marked as Exbt. Ka-5 to Ka-7 and thereafter sealed the dead body in a cloth and prepared sample seal and despatched the dead body for post-mortem examination.

27. During cross examination, he has categorically pointed out that at the time of inquest, the deceased was not wearing any clothes and his corpse was covered with a bed sheet, however he did not make any investigation as to where his clothes had gone, which the deceased was wearing at the time of incident.

28. Shyam Swarup (P.W.-5) is the medical officer, who conducted an autopsy on the person of the deceased on 30.8.1978 at Ursala Hospital, Kanpur and had noted the injuries, which has already been described above and need not to be repeated.

29. During cross examination, he stated that from the dead body, it appears that the victim was operated upon in some hospital, where he was admitted. As mentioned in the death memo alongwith the dead body, there is no injury report available on the file.

30. Narayan Das Dwivedi (P.W.-6) was the Head Moharrir at the relevant time in police station- Rath and on the basis of fard recovery memo, which has been proved and marked as Exbt. Ka-2, he had drawn the chik FIR, which has been marked as Exbt. Ka-9. Corresponding G.D. Entry No. 22 at 9:10 p.m., which has been marked as Exbt. Ka-10, has also been drawn and the FIR was registered under Section 307 IPC and 25 Arms Act. He has further stated that accused Halkey and Narayan were put in the lock up and recovered articles were kept in the malkhana and injured constable Suresh Singh was sent for medical examination. On 1.9.1978, an information was received about the death of constable Suresh Singh and, as such, case was converted form Section 307 IPC to section 302 IPC vide G.D. Report No. 29, which has been proved and marked as Exbt. Ka-11.

31. During cross examination, he stated that constable Suresh was brought at the police station alongwith constable Ali Hasan and constable Krishna Swarup. Accused Halkey and Narayan were also brought with them. After receiving injuries, Suresh Singh first reached at the police station and then was sent to the hospital. While preparing the G.D., clothes worn by constable Suresh Singh were not noted though his injuries were noted. It is wrong to state that his clothes were hidden. It is wrong to state that Halkey and Narayan were brought in the police station and put in the lock up and false case was registered against them.

32. Gaya Prasad (P.W.-7) is the investigating officer and at the relevant time was posted as S.I. Second at P.S. Rath and in his presence said case was registered, who was entrusted with the investigation of the said case. After recording the statement of Head Moharrir Narayan Das Dwivedi, he proceeded to the place of incident and after making spot inspection prepared the site plan at the pointing out of the constable Ali Hasan, which has been proved and marked as Exbt. Ka-12. During inspection of the site plan, he recovered seven cartridges said to be fired by the miscreants, which were taken in possession and its recovery memo was prepared, however blood stained earth was not taken in possession. Since due to heavy rains, no blood was found, which was wiped out. After concluding the investigation, P.W.-7 submitted the charge sheet on 8.10.1978.

33. During cross examination, he has stated that the said case was registered in his presence at the police station and at the time of incident, constables Ali Hasan and Krishna Swarup were present at the police station, however at the relevant time, he had not recorded their statements on account of constable Suresh being hit by fire arm. He also did not record the statement of victim Suresh as he was hit by firearm. The statement of other two police constable was also recorded on next day at Galiha. He further stated that S.O. V.K. Sinha, who had gone to the hospital alongwith constable Suresh and had taken the clothes, which he was wearing at the time of incident and drawn the fard recovery memo relating to constable Suresh however, the same is not mentioned in the case diary not the same is available in the Court file. Even what clothes were taken in possession has not been recorded. He had also not seen the said clothes and even in the case diary, it has not been mentioned as to whether the clothes were police uniform or plain clothes.

34. He has categorically stated that he is not aware of the fact whether constable Suresh at the time of incident, was wearing plain clothes or was in police uniform as such the said clothes are deliberately being hidden. He further stated that about one year prior to the incident, he was posted at police station - Rath and several times visited village- Mawai. He was also aware of the fact that they were daggers drawn enmity and parti-bandi between Lal Diwan and Har Prasad on one hand and Asharfi on the other. He has further stated that P.W.-3- Shri Chand has stated to him that Maheshwari Khangar of village-Galiha was also present at the place of incident, extract of which, he has filed as Exbt. Kha-1. He has also filed the statement of P.W.-2 Shri Chand marked as Exbt.Kha-2.

35. Shyam Lal Dixit (C.W.-1) is the Head Moharrir posted at police station- Rath at the relevant time. He stated that he has brought Malkhana Register of the year 77 to 79. Two bundles of articles collected during the course of investigation is not available. Information in respect of which, was also given to the higher authority by making a note in the register. During cross-examination he further stated that it is wrong to state that the articles collected during the course of investigation, has deliberately been got misplaced as that would have adversely affected the case. The articles of other cases has also been misplaced.

36. Ram Sajivan Singh (C.W.-2) is the S.I. and at the relevant time, he was posted at police station- Rath and got the proclamation under Sections 82 and 83 Cr.P.C. against the co-accused Narayan, however since the said accused was absconding for the last 2-3 years and his whereabouts could not be known, as such the process issued against him was returned back to the Court. There is no chance of accused Narayan being arrested.

37. S.K. Shukla (C.W.-3) is the S.I. of Police Station- Rath, who is in his testimony, stated that on 20.3.1983, he was posted at Police Station- Rath and had received attachment/ warrant orders of accused Halkey and tried to serve it but since he had no moveable property, as such warrants/attachment proceedings could not be executed. He further stated that accused Halkey is absconding and there is no chance of his arrest in near future, as such the said two persons could not be tried.

38. After concluding the aforesaid evidence, the statement of the accused respondents were recorded under Section 313 Cr.P.C. by putting all the incriminating circumstances to them. In his statement recorded under Section 313 Cr.P.C., accused-respondent Lal Diwan stated that on 15.8.1978 at about 6 a.m., he was present at his chak, where a well is situate and at the relevant time he was getting his work done. Asharfi, Rameshwar, Loknath alongwith three unknown persons were with them. All were armed with weapons. After seeing they challenged him, as such he tried to run away. While running they fired a shot upon him, which hit him on his back, then another fire was made, which did not hit him. While running he turned and saw that the fire made by Asharfi hit him on his forehead and deltoid. In his defence he also fired a shot and then ran away. Number of fires were made on him, however they did not hit him. All the accused persons were having 12 bore guns. Unknown persons were in plain dress. Kishore, Chandra Bhan and Raghunath were present at the place of incident. Subsequently, he came to know that his fire hit constable Suresh, who was in plain dress. After recording of his statement under Section 313 Cr.P.C. the accused-respondent entered into his defence and produced D.W.-1 Balak Ram Pandey and D.W.-2 Narottam Kumar as defence witnesses.

39. Balak Ram Pandey (D.W.-1) in his statement has stated that in the year 1978, he was posted at the Collectorate as Sawal Navees. On 19.8.1978, he had typed an application on behalf of Lal Diwan son of Gulam on his dictation, which is signed by him. The said application was read out to the Lal Diwan and thereafter his signature was obtained and given to him, which has been proved and marked as Exbt. Kha-1.

40. During cross examination, the said witness stated that he does not maintain any register for the application and further denied the suggestion that the said application has been typed subsequently by him by making it anti-dated i.e. 19.8.1978.

41. Narottam Kumar (D.W.-2) was the compounder in District Jail Hamirpur at the relevant time. He stated that the injury register dated 19.8.1978 has been brought by him. On the said date, Lal Diwan son of Gulam was medically examined by doctor S.N. Dixit at District Jail Hamirpur and in the said register, injuries of Lal Diwan has been noted by him in the hand writing of Dr. Dixit, a copy of which is being filed and marked as Exbit. Kha-9.

42. During cross examination, he stated that the duration of injuries cannot be pointed out by him nor could he state as to by which weapon the said injuries has been caused. Injured is not before him nor he is acquainted with him. Dr. S.M. Dixit is alive and posted at Baranabki. The accused subsequently appeared before the Court.

43. After recording the said evidence, the trial court acquitted the accused-respondents by holding that in the said incident, cross report has also been lodged by the accused-respondent Lal Diwan, which has been marked as Exbit. Kha-1, however the investigating officer did not make any investigation on the said application. He has also recorded the finding that the prosecution has not given any explanation of the injuries received by accused-respondent Lal Diwan. It has been further noted that the empty cartridges fired by the police were not produced before the Court nor the police uniform said to be worn by the deceased at the time of incident has been produced before the Court nor there is any mention of the same in the relevant G.D. Even at the time of conducting the inquest, no clothes were found on the person of the deceased and it has been stated by the investigating officer (P.W.-7) that he does not know if at the time of incident, constable Suresh Singh was in police uniform or in plain dress.

44. The trial court has further stated that P.W.-2 and P.W.-3 has admitted the fact that they are the pocket witnesses of the police. They deposed their evidence in several cases and as such, in the absence of any independent testimony, the testimony of P.W.-2 and P.W.-3, who are pocket witnesses of the police, cannot be relied upon. The trial Court has further placed reliance upon the testimony of P.W.-2, wherein in his cross examination, he has categorically stated that all the three police personnels were in plain clothes and were not having rifles but were armed with 12 bore guns. The said witness has further stated that when they reached near the grove of Adhar and Asharfi pointed out to the police that the person sitting near the well, is Lal Diwan, the police personnels opened fire causing pellets injuries to Lal Diwan, who ran away towards the village, then police personnels fired 2-3 shots more upon him. Lal Diwan in his defence also fired a shot, which hit Suresh Singh.

45. It is further pointed out in the testimony of Shri Chand (P.W.-3), wherein he has stated that he was not earlier acquainted with accused Har Prasad and Lal Diwan and had seen them only in the lock up after the incident and then for the first time their names were disclosed to him. When he was also detained in the lock up in another criminal case. In the backdrop of the said circumstances, the trial court has held that the prosecution has miserably failed to prove its case beyond reasonable doubt because from the statement of the witnesses, the factum of police party going on picketing duty and firing upon the accused persons in their defence is also not proved. Furthermore, the factum of police personnels going in plain clothes for their duty armed with 12 bore guns, creates serious dent in the prosecution story, which makes it highly doubtful, as such acquitted the accused respondent Lal Diwan of all the charges framed against him.

46. Being aggrieved and dissatisfied by the said order, the present government appeal has been filed.

47. Learned AGA on behalf of the State/appellant has submitted that the trial court has not appreciated the evidence and material on record in right perspective and on the basis surmises and conjectures, has illegally recorded the finding of acquittal against the accused-respondents, which is bad in law and liable to be set aside.

48. Learned AGA for the appellant has further submitted that from the testimony of P.W.-2 and P.W.-3, who were present with the police personnel at the time of incident, the prosecution story has been established beyond doubt against the accused respondent. Even P.W.-1 the police constable corroborated the prosecution story, however the trial court on the basis of surmises and conjectures has disbelieved their testimony and recorded the finding of acquittal, which is bad in law and liable to be set aside.

49. Learned AGA has further drawn the attention of the Court to the statement of accused-respondent Lal Diwan and has submitted that in his statement recorded u/s 313 Cr.P.C., accused-respondent Lal Diwan has clearly stated that "बाद में मुझे पता लगा कि मेरा फायर सुरेश सिपाही को लग गया है, जो सादा वर्दी में था।"

Thus, from the said statement, he had confessed that a shot fired by him hit the constable Suresh, who later died and thus on the said confession of the accused-respondent, he is liable to be convicted, however the trial court completely over looked it and has illegally recorded the finding of acquittal, which is bad in law and liable to be set aside.

50. Per contra, Sri Sanjeev Kumar Khare, learned counsel for the accused-respondents has submitted that the trial court has appreciated the entire evidence and material on record in right perspective and on the basis of evidence adduced the factum of police personnels going on picketing duty and opening fire upon accused-respondents in defence is not proved and, as such has rightly acquitted the accused-respondents by extending benefit of doubt to them.

51. Learned counsel for the accused-respondents has further submitted that from the evidence adduced during the course of trial, P.W.-2 in his statement has clearly stated that all the three police personnels were in plain clothes and not in police uniform. Further all the three police constables were having 12 bore guns with them and not rifles. This clearly shows that the police personnel were not discharging their picketing duties and were not even armed with their rifles and fired upon the accused-respondents from their 12 bore guns, which hit the victims causing injuries. Thus, police personnels were not discharging their picketing duties rather had gone to encounter Lal Diwan at the instance of Asharfi as stated by the accused-respondent Lal Diwan in his statement recorded u/s 313 Cr.P.C., which finds corroboration from the evidence adduced by witnesses.

52. Learned counsel for the accused-respondents has further submitted that statement of P.W.-2 and P.W.-3 has rightly not been relied upon by the trial court in view of the fact that they themselves have admitted that earlier also in 2-3 cases they had deposed on behalf of the police and thus, they are the pocket witnesses of the police. Even P.W.-3 in his statement has stated that he is also involved in a case under Section 307 IPC and 2-3 other criminal cases. He, in his testimony, has further categorically stated that prior to the incident, he was not acquainted with the accused-respondents nor had ever earlier seen them but had for the first time seen them in the lock up. He categorically stated that after the incident he also had been in jail in a criminal case, where they met him and then their names were disclosed to him. Thus, from the said testimony, it is evident that both P.W.-2 and P.W.-3 are the pocket witnesses of the police and, therefore, they cannot be relied upon as rightly held by the trial court and, therefore, the finding of acquittal recorded by the trial court against the accused respondent is just, proper and legal and do not call for any interference by this Court.

53. Learned counsel for the accused-respondents has next submitted that the trial court has not relied upon the testimony of P.W.-2 and P.W.-3 being the pocket witness of the police, as such in the absence of the testimony of any reliable independent witness, the testimony of police constable P.W.-1, who is most interested and partisan witness cannot be relied upon more so on account of serious inconsistencies in his statement with P.W.-2 in material particulars, as such the finding of acquittal recorded by the trial court needs no interference by this Court and is liable to be upheld.

54. Having considered the rival submissions made by the learned counsel for the parties and appreciating the material on record, it is evident that in the instant case from the testimony adduced during the course of trial, it transpires that the police party though is alleged to have gone for picketing duty on the relevant date and time, however from the testimony adduced particularly that of P.W.-2, wherein he has clearly stated that :-

"तीनो सिपाही सादी पोशाक में थे पुलिस वर्दी में न थे। तीनों सिपाही 12 बोर बन्दूके लिए थे। राइफल नहीं लिए थे। राइफल व बन्दूक में फर्क जानते है।"

55. From the said testimony of P.W.-2 , it is evident that the police constables were in plain dress and not in police uniform at the time of alleged incident and were armed with 12 bore guns and not with their rifles as alleged in the first information report, which circumstance creates a serious dent in the prosecution story and makes it wholly unreliable and adversely effects the very genesis of the prosecution story that the police personnels had gone to discharge their picketing duties in the village. The circumstance about the victim-deceased being in plain clothes is further fortified from the inquest report wherein it has been pointed out that the investigating officer has not found any clothes on his person. Even the Head Moharrir, who has drawn first information report, on the basis of fard recovery memo has clearly stated in his cross examination that constable Suresh Singh after receiving injuries was brought at the police station and then taken to hospital. While making G.D. Entry, the clothes of Suresh Singh has not been noted though his injuries has been noted. To quote :

"चोट लगने के बाद सुरेश सिंह पहले थाने आया फिर अस्पताल गया। जीडी में सुरेश सिंह के कपड़ो का इन्द्राज नहीं किया लिखने की आवश्यकता नही समझी सुरेश की चोटे दर्ज की थी।"

Further, Gaya Prasad (P.W.-7), the investigating officer in his testimony has further stated that :-

"मुझे यह जानकारी नही है का० सुरेश (मृतक) घटना के समय सादे कपड़े पहने था या पुलिस वर्दी पहने था इसलिए उन कपड़ो को जानबूझ कर छिपाया गया है।"

57. Thus, from the entire testimony, it is evident that memo for the recovery of clothes said to be prepared, has not been placed on record before the trial court. All the aforesaid circumstances creates a serious doubt about the factum that the police personnel at the relevant time were on picketing duty when the incident is said to have taken place as alleged by the prosecution, which factum creates a serious dent in the prosecution story and makes it highly doubtful as rightly held by the trial court.

58. It is further relevant to point out here that during the course of trial, it has been brought on record that in the said incident even accused-respondent Lal Diwan suffered pellet injuries on his person and his injuries has been proved by D.W.-2, which has been marked as Exbt. Kha-9, however the prosecution has miserably failed to tender any explanation in respect of the said injuries received by Lal Diwan, which further creates a serious doubt about the genesis of the prosecution story and makes it doubtful.

59. Furthermore, even the complaint lodged by accused-respondents, which has been exhibited as Kha-1, has also not been investigated by the investigating officer, which further creates serious dent in the prosecution story. It is further noticeable from the testimony of P.W.-2 and 3 that they are pocket witnesses of the police and are involved in other criminal cases and, therefore, also their testimony cannot be said to be of impeccable nature as rightly held by the trial court while recording the finding of acquittal against the accused respondent, which order in our opinion, does not suffer from any illegality or infirmity and is also affirmed by us.

60. Moreover, having carefully gone through the testimony of P.W.-2 and P.W.-3, we find material contradictions in their testimony particularly in respect of the clothes worn by the police personnel at the time of incident and the weapons they were carrying. P.W.-2 in his statement has categorically stated that police personnels were in plain clothes and were having guns in their hands while P.W.-3 stated that they were in police uniform and armed with rifles with which the fire was made upon the victim causing injuries to him.

61. Further, when we go through the testimony, P.W.-2 he in his statement has categorically stated that Lal Diwan suffered pellets injuries on his person, which, in any manner, could not be caused by a rifle shot as stated by P.W.-3. Thus the material inconsistencies pointed above in the statement of P.W.-2 and P.W.-3 makes the prosecution story further doubtful as held by the trial court, while recording the finding of acquittal, which in our opinion do not require any interference by this Court at this stage.

62. We may further note that from the entire evidence adduced during the trial if we take a holistic view of the sequence of events in the instant case, we find that there has been daggers drawn enmity between accused respondent Lal Diwan on one hand and one Asharfi on the other, who is also stated to be present at the time of incident as per the statement of P.W.-2 Jhagru and it transpires that on account of the said enmity Asharfi, in order to settle personal scores with the accused respondent Lal Diwan had colluded with the police to eliminate him and in the said backdrop, on the fateful day had accompanied the police personnels, who are stated to be in plain dress and armed with guns had reached the grove of Aadhar and on pointing out of Asharfi identifying Lal Diwan the police personnels fired upon the accused respondent, who in order to save himself ran towards Sukhlahari and received pellet injuries and it is alleged that the accused respondent also resorted to firing which hit constable Suresh Singh who received injuries and later died in the hospital, however subsequently the police personnels in their defence cooked up a false prosecution case implicating the accused respondent to have killed the deceased Suresh Singh which in the backdrop of the entire facts and circumstances as led by the prosecution do not inspire much confidence and probablises the defence taken by the accused respondent which appears to be more truthful in the facts and circumstances of the case. Thus, we are of the opinion that in the instant case, the prosecution has not been able to prove its case beyond reasonable doubt against the accused respondent and he is entitled to benefit of doubt by recording the finding of acquittal, as also held by the trial court which finding in our opinion is just, proper and legal and do not call for any interference moreso by reversing the finding of acquittal, which we accordingly affirm. For better understanding of the discussion made above it would be apt to quote the statement of P.W.-2 Jhagru in regard to the aforesaid facts :-

" जब मै आया तो लाल दिवान उसी कुएं पर था। जैसे ही बगिया के पास पहुंचे तो अशर्फी ने कहा यही है और कहते ही पुलिस वालो ने उस पर गोली चला दी। लाल दिवान के छर्रे लगे थे। फिर लाल दिवान सुकलही गांव की तरफ भागा। भागते में पुलिस वालो ने फिर 2,3 फायर किया। उसी समय भागते मे अपनी वचत में लाल दिवान ने एक फायर किया। वही फायर सुरेश सिपाही को लग गया। "

63. Now coming to the arguments of learned AGA while relying upon the statement of accused-respondents under Section 313 Cr.P.C. wherein he had stated that "बाद में मुझे पता लगा कि मेरा फायर सुरेश सिपाही को लग गया है, जो सादा वर्दी में था।" which amounts to admission of the accused-respondent and on the said admission, he is liable to be convicted, however, when we go through the said statement, we find that it is highly vague and in admissible in evidence.

64. It is well settled principle of law that the statement of the accused u/s 313 Cr.P.C. cannot be read in evidence so as to convict him as it cannot be regarded as a substantive piece of evidence. Thus, we do not agree with the said submission of learned AGA in this behalf and his argument is liable to be repelled.

65. Now coming to the scope of reversal of acquittal in Govt. Appeal, we may say that the Hon'ble Apex Court in several of its decisions has laid down the principles governing the scope of interference by the High court in an appeal filed by that state for challenging the acquittal of the accused recorded by the trial court. This Court in the case of Rajesh Prasad v. State of Bihar and Another encapsulated the legal position covering the field after considering various earlier judgments and held as below: -

"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415]

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not distrub the finding of acquittal recorded by the trial court."

66. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -

"8.1. The acquittal of the accused further strengthens the presumption of innocence;

8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;

8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and

8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."

67. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-

a) That the judgment of acquittal suffers from patent perversity;

b) That the same is based on a misreading/omission to consider material evidence on record;

c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

68. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.

69. In the light of above settled proposition of law when we go through the impugned judgment and order, we find that the trial court had given cogent and convincing reasons for recording the finding of acquittal against the accused-respondent and that the acquittal of the accused-respondent is plausible and justifiable view emanating from the discussion of the evidence available on record and does not suffer from any infirmity or perversity. Therefore, we are of the opinion that the impugned judgement and order passed by the trial court is just, proper and legal and do not call for any interference by this Court.

70. The present government appeal lacks merit and is accordingly dismissed.

71. Trial court's record be remitted back forthwith.

Order Date :- 31.5.2024

KU