Allahabad High Court
Munna vs State Of U.P. And 7 Ors. on 14 July, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 543 of 2022 Appellant :- Munna Respondent :- State Of U.P. And 7 Ors. Counsel for Appellant :- Ramanuj Yadav Counsel for Respondent :- G.A.,Nand Kishor Mishra,Shilpa Ahuja Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
(Oral Judgment by Hon'ble Vikas Budhwar, J.)
1. This appeal under Section 372 of Criminal Procedure Code, 1973 (in short 'Cr.P.C.'), has been instituted by the appellant against the judgment and order dated 3.11.2018 passed by IVth Addl. Sessions Judge, District Hamirpur, passed in S.T. No. 1 of 2009, arising out of Case Crime no. 672 of 2008, under Sections 436, 120-B IPC, Police Station- Khanna, District Hamirpur, whereby learned trial court has acquitted the accused persons, who are opposite parties nos. 2 to 8.
2. Briefly stated facts shorn off unnecessary details are that the first informant being the appellant Munna son of Late Bhagwan Deen is a resident of village Gyodi, P.S. Khanna, District Hamirpur. As per the prosecution case, on 10.10.2008, one Rajesh Dubey, accused respondent no.7, Ashok Dubey- accused respondent no.8, Chhuttan Singh, accused-respondent no.6, Udai Bhan Singh, accused -respondent no.5, Kishori Sahu, accused - respondent no.2, Rajju Mali- accused-respondent no.3 and Babu Mali- accused - respondent no.4 in connection with certain water dispute indulged in administering beating with the brother and family members of the informant, pursuant whereto the brothers of the informant sustained injuries and they were put to medication in the District Hospital, Hamirpur. Further it has been alleged that on 12.10.2008 at 9:30 hours in the night, the accused-respondent Kishori, Rajju Mali and Babu Mali assembled in front of his house and consigned the house to flames. Pursuant whereto enormous damage occasioned. As per the prosecution version, so contained in the FIR after a period of two days, the nephews of the informant being Vivek and Pappu gave the information regarding putting the house on flames by the aforesaid three accused as named hereinabove. Accordingly, the informant came back to his house, as he was out-stationed and straightway went to the site of occurrence and on the same day, he reported the matter to the police station Khanna, District Hamirpur and accordingly, the FIR purported to be under Section 436 IPC read with section 7 of the Criminal Law Amendment Act was sought to be lodged being Case Crime no. 672 of 2008. The FIR in question was lodged on 13.10.2008 at 18:50 hours. The FIR was lodged against Kishori Sahu (accused-opposite party no.2), Rajju Mali (accused-opposite party no.3) and Babu Mali (accused - opposite party no.4).
3. Consequent to the lodging of the FIR, investigation was put to motion and investigating officer was nominated who went to the site of occurrence prepared site plan and recorded under Section 161 CrPC. A charge sheet was submitted by the Investigating Officer against the accused-respondents herein purported to be under Sections 436, 120-B IPC read with Section 7 Criminal Law Amendment Act. The matter was committed to the Court of Sessions. The accused pleaded innocent and not guilty.
4. To bring home the charges, the prosecution produced following witnesses, namely:
1.
Munna PW1
2. Vivek PW2
3. Head Constable Ram Bharose PW3
4. S.I. Balbeer Singh (I.O.) PW4
5. We have heard Sri Ramanuj Yadav, learned counsel for the appellant and Sri Ratan Singh, learned A.G.A. for the State.
6. Before we embark on testimony and the judgment of the Court below, the contours for interfering in Criminal Appeals where accused has been held to be non guilty would require to be discussed.
7. The Hon'ble Apex Court in the series of decisions have been consistently mandating that it is well settled principle of law that appellate courts hearing the appeal filed against the judgment and the order of the acquittal should not overrule or otherwise disturb the judgment acquittal, if the appellate court does not find substantiate and compelling reasons for doing so.
8. Nonetheless if the trial courts conclusion with regard to the facts is palpably wrong if the trial court decision was based on erroneous view of law and the judgment is likely result in grave miscarriage of justice and the approach proceeded towards wrong direction or the trial court has ignored the evidence or misread the material evidence which should have determining the factor in the lis of the matter then obviously the appellate court is right in interfering with the order acquitting the accused. However, Hon'ble Apex Court has further held that in case two views are possible and the view so taken by the trial court while acquitting the accused is a plausible view then in the backdrop of the fact that there is double presumption of innocence available to the accused then obviously the appellate court should not interfere with the order of acquittal.
9. The above noted proposition of law is clearly spelt out in umpty number of decisions, some of them are as under namely:-Tota Singh and another vs. State of Punjab, (1987) 2 SCC 529, Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, State of Rajesthan vs. State of Gujarat, (2003) 8 SCC 180, State of Goa vs. Sanjay Thakran, (2007) 3 SCC 755, Chandrappa and others vs. State of Karnataka, (2007) 4 S.C.C. 415, Ghurey Lal vs. State of U.P., (2008) 10 SCC 450, Siddharth Vashishtha Alias Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1, Babu vs. State of Kerala, (2010) 9 SCC 189, Ganpat vs. State of Haryana, (2010) 12 SCC 59, Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra, (2010) 13 SCC 657, State of U.P. vs. Naresh, (2011) 4 SCC 324, State of M.P. vs. Ramesh, (2011) 4 SCC 786, and Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219.
10. Bearing in mind the judicial pronouncement of the Hon'ble Supreme Court in dealing with the appeals at the instance of the complainant, the present case is to be decided.
11. To begin step by step, the ocular testimony of the prosecution witness is to be meticulously analyzed.
12. PW-1 Munna got himself present in the witness box and according to him, he could identify as he knows all the accused. In his testimony, PW-1 further deposed that on 12.10.2008, his brother Keshav, Ram Kripal, Ram Babu and Smt. Ram Kunwar had gone to fetch water and at that point of time, the accused herein being Rajesh, Ashok, Udai Bhan and Chhuttan indulged in fighting, pursuant whereto injuries were sustained by them and after two days, he received an information through his nephew Vivek, who happens to be PW-2 and another nephew Pappu that the accused Babu, Kishori and Rajju had consigned their house on flames and accordingly, he came back to his house on 13.10.2008 and thereafter got the FIR lodged. In the statement, the occurrence of consigning the house to flames was assigned 8-9 P.M, in the night on 12.10.2008. According to PW-1 Munna, he is a driver, who drives the vehicle of one Sri Aridam Singh. Thus the PW-1 is not an eye-witness to the said occurrence.
13. As PW-2, Vivek son of Keshav presented himself. According to him on the date of the incident, he was 11-12 years studying in Class-IX and he had also narrated the fact that on 10.10.2008, beating was also administered to his relatives by the accused and on 12.10.2008, the accused set the house in flames at 9:30 in the night and the said act was done by the Kishori Sahu, Babu Mali and Rajju Mali and he had given information to his uncle PW-1 after two days. In his cross, PW-2 Vivek has deposed that there is a police station Khanna situate over there, whereat one S.I. and five to six constables are there and when the alleged incident took place, and the police station was just 100 steps from his house and towards the western side. The house of PW-1 is situate just 20 steps.
14. PW-3 Constable being Ram Bharose Tripathi also presented himself as prosecution witness and he proved the prosecution case, as he was the person, who got registered the FIR.
15. S.I. Balbir Singh (I.O.) presented himself as PW-4, who took the statements of the prosecution and on the pointing out of the prosecution witnesses, he prepared the site plan and recorded the statements of prosecution witnesses.
16. As per the prosecution case, PW-1, who happens to be Munna Singh is the informant, however, he is not present when the alleged offence was said to have been committed, as he was on a different place driving the vehicle while working as a driver. However, according to him, he received information regarding the incident of fire on 13.10.2008 from PW-2 Vivek and Pappu through telephonic call, whereat the accused Babu, Kishori and Rajju were assigned the roles of consigning the house on flames. According to him, he after finishing his work came back to the village and straightway went to the site of occurrence and thereafter proceeded to P.S. Khanna and got the FIR registered on 13.10.2008 at 18:50 hours.
17. Now, a question arises as to why the FIR was not lodged on 12.10.2008 itself by the prosecution witnesses, who witnessed the said occurrence. As per the statement of PW-2 Vivek, he in his testimony has deposed that the fire took place on 12.10.2008 in the night at 9 to 01:30 hours. Further in the cross-examination, PW-2 Vivek has himself further deposed that a police chawki is already stationed wherein there is one S.I. and five to six police constables and on the date of the occurrence, it was 100 steps from his house. No plausible explanation has been offered by PW-2 Vivek as to why the FIR was lodged on 13.10.2008 at 18:50 hours, i.e, on the next day after enormous delay. It has also come on record that the Police Station is quite near and further the fact that there was no obstruction or hindrance so available or the approach towards the Police Station was not accessible.
18. Another factor, which needs to be considered at this stage is the fact that in the deposition of PW-1 Munna, information regarding the consigning of the house on flames was made available to the PW-1 Munna by Pappu also. However, Pappu was not presented as prosecution witness and thus neither his examination-in-chief nor cross-examination was conducted. The said factor also assumes significance, as at that relevant point of time, PW-2 Vivek was studying in Class-IX and he happened to be an interested witness, vis-a-vis commission of crime, so much so it is quite implorable or inconceivable that if somebody's house is put on fire, then the aggrieved party would wait for a day and not promptly lodge the FIR. It has further come on record that the Police Station/ chawki in question was just 100 steps from the house of the informant and thus in all possibilities in case fire occasioned, then the police would have come there as they cannot be a mute spectator in this regard.
19. Even otherwise, in the FIR the incident has been shown to have been committed at 9:30 P.M, on 12.10.2008 as whereas in the statement of PW-1, Munna, the occurrence has been shown to be at 8 to 9 in the night on 12.10.2008. No independent witness whatsoever appeared as a prosecution witnesses so as to prove that the accused had consigned the house of the informant on flames.
20. Moreover records further reveal that though the FIR had been lodged against the accused O.P. no.2 Kishori, accused O.P. no.3 Rajju Mali and accused O.P. no.4 Babu Mali. However, perusal of the statement of PW-1 Munna shows that accused opposite parties 2 to 8 have been shown to have committed crime. It has also come on record that the accused opposite party no.5 Udaibhan, accused O.P. no.6 Chhuttan, accused O.P. no.7 Rajesh and accused O.P. no.8 Ashok were already in judicial custody at the time when the alleged offence took place. No explanation whatsoever has been tendered by the prosecution, as to why their names surfaced and put to trial in that regard. The said aspect is of great significance as PW-2 Vivek was an eye-witness to the said incident and so far as Pappu is concerned, who is said to be an eye-witness did not enter into the witness box.
21. Looking into the said factors, the issue of delay in lodging of the FIR also assumes significance as normally, delay in lodging of the FIR does not ipso facto becomes a ground to demolish the prosecution case, however, it is one of the indices which itself is to be taken into consideration and assumes significance in the light of the other factors or ingredients in order to put the nail in the coffin for conviction.
22. The Hon'ble Apex Court on the question of delay in lodging the FIR and its impact upon the prosecution theory in the case of Thulia Kali Vs. The State of Tamil Nadu, (1972) 3 SCC 393, has observed as under:-
"The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story As a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."
23. In the case of Apren Joseph Alias Current Kunjukunju and others Vs. The State of Kerala, (1973) 3 SCC 114, the Hon'ble Apex Court has observed as under:
"11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154, Cr. P. C. As observed by the Privy Council in K. E. v. Khwaja, the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue unreasonable delay in lodging the F. I. R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case."
24. In the case of Tara Singh and others Vs. State of Punjab, 1991 Supp (1) SCC 536, the Hon'ble Apex Court in paragraph 4 has observed as under:-
"4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case."
25. In the case of Meharaj Singh Vs. State of U.P., (1994) 5 SCC 188, the Hon'ble Apex Court has observed as under:-
"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been 'ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8."
26. In the case of Thanedar Singh Vs. State of M.P., (2002) 1 SCC 487, the Hon'ble Apex Court has observed as under:-
"6. The High Court was of the view that the judgment of the Trial Court was perverse and its approach was unreasonable. The first comment made by the High Court was that the Trial Court did not assign any reason for disbelieving the FIR. The High Court found no infirmity in the FIR having regard to the fact that the part played by the accused appellant was specifically mentioned in the FIR. But, the High Court missed to note the crucial facts adverted to in Para 5.2 (supra) which cast a serious doubt on the correctness of the FIR, especially the time and date of its recording. The learned Sessions Judge particularly adverted to the fact that the prosecution did not produce the original record of police station relating to the receipt and despatch of FIR inspite of an order passed to that effect. Though the Trial Judge was not careful enough in recording a specific finding that the prosecution failed to clear the doubt regarding the date and time of recording the FIR, in sum and substance, that is what the learned Trial Judge purported to say. The observations of the Trial court were not properly understood by the High Court when it proceeded on the basis at paragraph 12 that the Trial court found fault with the delay in lodging the complaint at 9 A.M. on the next morning. But, it is to be noted that nowhere in the judgment, the trial court observed that the complaint having been lodged and recorded at 9A.M. next morning, that itself would tantamount to delay."
27. Yet, in the case of P. Rajagopal and others Vs. State of Tamil Nadu (2019) 5 SCC 403, the Hon'ble Apex Court in paragraph 12 has held as under:-
12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely.
28. Noticing the underlying principles of law as laid down in the above noted judgments, this Court finds that the incident of setting ablaze the house of the informant took place on 12.10.2008, however, the written complaint, which transformed into lodging of the FIR was dated 13.10.2008 at 18:05 hours, despite the fact that PW-2 Vivek son of Keshav and Pappu were present though did not lodge the FIR. There has been no explanation offered by the prosecution in lodging the FIR after huge delay, particularly when the police station itself was 100 steps from the house of the informant.
29. The Trial Court has also considered the provisions contained under Section 436 IPC, which refers to the penal provision with regard to mischief by fire or explosive substance, with intent to destroy house. The Trial Court has also referred to the FIR, according to which the informant's house was completely consigned to flames. As a matter of fact, the entire prosecution story also is under cloud as according to the statement of PW-2 Vivek, he had narrated the entire fact and a site-plan was also prepared by the Investigating Officer. However, as per the site-plan, the point ''A', which has been crossed is being shown to have been consigned to flames. This is the back portion of the house of Keshav as only part of portion has been shown to be burnt.
30. The issue can also be seen from another point of angle also that there has been no statement made by any of the prosecution witness as to when any exercise whatsoever was taken to subdue the fire and what was the items which got burnt and at what time, the gate / door was opened and items recovered either burnt or not. Even there is no recovery memo or any inventory so as to suggest as to what type of damage was done. The same also put a big question mark over the investigation so sought to be conducted by the Investigating Officer. Notably, there were no other villagers, who could have been independent witness to have recorded his testimony regarding alleged commission of crime, which could have proved the fact as to whether the accused herein were a part in commission of offence.
31. Analyzing the present case from four-corners of law, this Court finds that the prosecution proceeds on weak footing as not only there is delay in lodging of the FIR, but the other indices for linking the accused for commission of crime is also lacking, particularly of the fact that there are major contradictions in the statement of PW-1 and PW-2 as well as the fact that Pappu did not appear in the witness-box and the manner in which investigation has been done and lastly, but not the least, the fact that the four accused as discussed above were in judicial custody, when the said crime was said to have occasioned.
32. Hence in any view of the matter, applying the principles of law so culled out by the Hon'ble Apex Court in the present case, we find that there is no perversity in the order of the Trial Court is a possible view and the testimony of the prosecution witnesses and the evidences so adduced therein do not point towards in any manner whatsoever for conviction of the accused.
33. So far as, the issue of motive is concerned, the learned Trial Court as discussed the same while holding that the same cannot be ipso facto a ground to hold the accused guilty of commission of crime, particularly when though allegations regarding administering of beating upon the brothers and the family members of the informant has been made, but no document whatsoever has been produced before the Court either showing the nature of the injuries or the lodging of the complaint or FIR against them. As it is well settled that enmity emanating as a motive is two-sided dagger and thus in order to put the motion of motive for conviction, same is to be proved beyond doubt also.
34. This Court while bestowing anxious consideration on the judgment passed by the Trial Court finds its inability to interfere in the present proceedings as according to this Court the view taken by the Trial Court does not seem to be suffering from any perversity, and this Court further finds that there is no other view ought to be taken, other than the view so taken by the court below. In the absence of any perversity or misreading of the evidences so sought to be adduced by the prosecution, this Court has no option but to concur with the judgment of the Trial Court acquitting the accused herein.
35. Resultantly, present criminal appeal is dismissed.
36. Records of the present case be sent back to the concerned court below.
(Vikas Budhwar, J.) (Vivek Kumar Birla,J.)
Order Date :- 14.07.2022
N.S. Rathour