Allahabad High Court
State Of U.P. vs Brajpal Singh And 2 Others on 21 January, 2020
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 51 Case :- GOVERNMENT APPEAL DEFECTIVE No. - 109 of 2018 Appellant :- State of U.P. Respondent :- Brajpal Singh And 2 Others Counsel for Appellant :- G.A. Counsel for Respondent :- Prakash Chandra Srivastava the accused was tried. Hon'ble Arvind Kumar Mishra-I,J.
Hon'ble Gautam Chowdhary,J.
In so far as the delay condonation application is concerned, we have heard at length both the learned A.G.A. for the State and Sri Prakash Chandra Srivastava, learned counsel for accused respondent nos. 1 and 2 and perused the record.
The office report indicates that vide letter of the Chief Judicial Magistrate, Shahjahanpur dated 29.3.2018, it has been informed that appellant no. 3 Mor Singh died during the pendency of this appeal. This appeal in so far as it relates to the aforesaid appellant Mor Singh, stands abated and is dismissed accordingly.
Now the surviving appellants are Brijpal Singh and Ram Baran Singh, respondent nos. 1 and 2. So far as the delay condonation application is concerned, reasons assigned appears to be genuine and the learned counsel for the aforesaid respondents has no objection if the delay is condoned but the matter is heard on its merit. Consequently, the delay is condoned.
The learned A.G.A. Nafis Ahmad is prepared to extend argument on its merit, therefore, this appeal is being taken up on its merit.
The instant Government appeal is directed against the judgment and order of acquittal dated 15.1.2016 passed by the Additional Sessions Judge, Court No. 24, district Shahjahanpur in Sessions Trial No. 733 of 2009 (State of U.P. Versus Brajpal Singh and others) arising out of case crime no. 504 of 2008 P.S. Madanapur district Shahjahanpur whereby specific order was passed acquitting the respondents-accused of the charges under sections 307,324 I.P.C.
Brief prosecution story relevant for the adjudication of this appeal as reflected from the record appears to be that the incident in question took place on 1.11.2008 when the uncle of the informant was ploughing his field in village Pipariya, P.S. Madnapur. When the aforesaid respondents accused arrived on the field, had some altercation with the uncle of the informant and at the exhortation of Brijpal Singh, Ram Baran Singh opened fire on the spot which fire hit the thigh of Tej Singh. The incident occurred at 8.00 a.m. in the morning. It was reported that the incident was seen by a number of persons. The matter was reported at Police Station Jalalabad, where it was lodged at case crime no. 504 of 2008 under sections 307, 324 I.P.C. and accordingly, the case was registered at 12.45 p.m. against the accused respondents. Since the matter related to the police station Madnapur, therefore, the case was transferred to the aforesaid police station where on 2.11.2008 the case was noted in the relevant G.D. and the investigation ensued. After completion of the investigation charge sheet was submitted under sections 307, 324 I.P.C. Consequently, the charges were framed against the accused under the aforesaid sections of the Indian Penal Code, which charges were denied and the accused opted for trial.
Consequently, the prosecution was required to adduce its testimony whereupon four prosecution witnesses were produced. The injured himself is the informant and has been examined as P.W. 1, Balbir Singh is P.W. 2. The Instigating Officer Saroj Kumar is P.W. 3 and Dr. M.P. Gangwar is P.W. 4. Besides, prosecution has also proved some relevant documents. The written report is Exhibit-Ka 1, Site plan is Exhibit-Ka-2, Charge Sheet is Exhibit-Ka-3, Chik FIR is Exhibit-Ka-4, Carbon copy of the G.D. is Exhibit-Ka-5, X-Ray report is Exhibit-Ka-6 and the injury report of Tej Singh is Exhibit-Ka 7. Apart from that a supplementary medical report of Tej Singh is Exhibit-Ka-8.
The evidence for the prosecution was closed and statement of accused under section 313 Cr.P.C. was recorded wherein the accused claimed false implication on account of enmity. The defence did not lead any evidence. Consequently, the matter was finally heard on merit by the trial court. After consideration of the entirety of the case on its merit/scrutiny of the evidence on record, the order dated 15.1.2016 was passed. Being aggrieved by the order of acquittal, the Government has come up in appeal before this Court.
The learned A.G.A. claims that basically the testimony of Tej Singh was required to be accepted/acted upon as he has specifically named the person who fired at him, which caused gunshot injury and merely because there were some laches towards treatment that alone would not create any shadow of doubt on the occurrence of the incident.
The injury report has been very much proved, but on analysis of the same, the scrutiny done by the trial court was basically beyond the preview of law and cannot be expected to be reasonable one for the reason that the doctor who examined the injured Tej Singh P.W. 1 has categorically stated that the wound might have been caused by gunshot. It is true that the doctor who medically examined the injured Tej Singh was not produced before the trial Court but that inaction alone would not cast any shadow of doubt on the merit/entirety of the case because the medical report was also duly proved by the doctor/radiologist, P.W. 4 and he was very much acquainted with the nature of this injury and has proved that it could have been caused by gunshot. No doubt, he has also expressed certain alternative as to when this injury can be caused, but there is no worthy and supporting evidence consistent with the theme that it was caused in a manner suggested by the defence. On the contrary testimony of Tej Singh cannot be bypassed merely on conjectural basis, as has been done by the trial court.
Sri Prakash Chandra Srivastava, appearing for the accused respondents vehemently claimed that the analysis/scrutiny done by the trial court and the finding of acquittal is justified. Under the facts and circumstances of the case, it was incumbent upon the prosecution to have come out specifically about the incident and the involvement of the accused in the commission of the crime which resulted into gunshot injury being caused to the injured Tej Singh. It is surprising that the gunshot hit the injured but the medical examination/x-ray was conducted/done under the prevailing facts and circumstances after two days of the incident and the height of the excuse shows that the doctor who medically examined the injured was not produced, which particular aspect throws a lot of doubt on the prosecution story and it does not inspire confidence.
It is also noticeable that in this case incident allegedly took place on 1.11.2008 and the matter was reported at the police station Jalalabad at Case Crime No. 54 of 2008. The case was transferred to the actual/concerned police station Madnapur on 2.11.2008 and in the concerned G.D. reference was made, is also available at the Police station Madanapur, but the investigation started from 27.11.2008 this late investigation too is indicative of the fact that manipulation was made by the prosecution in the case. There is no worthy explanation as to how the investigation was delayed for such a long period and the very next day i.e. 28.11.2008 charge sheet was submitted.
Considered the aforesaid rival submission and also considered the entirety of the case and primarily the testimony. Obviously, the doctor who medically examined the injured has not been produced and secondary evidence produced, but the secondary evidence cannot be accepted to be admissible, as per the relevant provisions of the Indian Evidence Act,1872. The primary evidence, which was required to be produced, was left out for no worthy reason. The radiologist alone would not establish the fact of medical examination and this secondary evidence was rightly found irrelevant and was not believed by the trial and not acted upon as such. The analyses of the facts and circumstances show that the testimony of Tej Singh is outcome of animosity on account of enmity on the ground of landed property between Tej Singh and the accused side and the injury caused was under circumstances not acceptable chances are there that it may be manufactured.
The trial court while assessing the various aspects of this case and scrutinizing the testimony of prosecution witness in particular that of the injured Tej Singh has rightly drawn conclusion that the case of the prosecution is full of laches and it does not inspire confidence. No other view can be held except the one taken by the trial court. Consequently, we are all of the considered opinion that this appeal preferred by the Government lack merits and the same is dismissed.
Order Date :- 21.1.2020 N.A.