Allahabad High Court
Devendra Singh vs State Of U.P. And Others on 16 December, 2022
Bench: Sunita Agarwal, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 16.7.2022 Delivered on 16.12.2022 Court No. - 39 Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 176 of 2013 Applicant :- Devendra Singh Opposite Party :- State of U.P. and Others Counsel for Applicant :- Atul Tej Kulshrestha,Vinay Singh Khokhar Counsel for Opposite Party :- Govt. Advocate Connected alongwith Case :- GOVERNMENT APPEAL No. - 1601 of 2013 Appellant :- State of U.P. Respondent :- Ummed And 5 Others Counsel for Appellant :- Govt. Advocate Counsel for Respondent :- Mayank Yadav,Vivek Kumar Singh Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Justice Sunita Agarwal)
1. Heard Sri V.P. Srivastava learned Senior Counsel assisted by Sri Atul Tej Kulshreshta and Sri Anshul Tiwari learned counsels for the appellant Devendra Singh, Ms. Meena learned A.G.A. for the appellant in Government Appeal No. 1601 of 2013 (State of U.P. vs. Ummed and 5 others) and Sri Brijesh Sahai learned Senior Counsel assisted by Sri Vivek Kumar Singh learned counsel for the respondents-accused.
2. The Criminal Misc. Application (Leave to Appeal) No. 176 of 2013 under Section 372 Cr.P.C. and Government Appeal No. 1601 of 2013 have been filed against the acquittal of accused/respondents namely Ummed, Jagroshan, Hariya @ Yogendra, Bhoora, Reena and Reeta under Sections 147, 148, 323/149, 324/149 and 325/149 IPC by the judgment and order dated 18.12.2012 passed by the Sessions Judge, Baghpat in Sessions Trial No. 352 of 2010 (State of U.P. vs. Ummed and others), arising out of Case Crime No. 588A/2008 under Sections 147, 148, 324/149 and 325/149 IPC, Police Station Baghpat, District Baghpat.
3. The appellant herein is the first informant of the instant case, report of which was lodged at the Police Station Baghpat on 16.8.2008 at 4:30 AM. The date and time of the incident noted in the Check FIR is 15.8.2008 at 10:00 PM. The place, direction and distance of the police station as indicated in the Check report is Village Faizpur Ninana, North, Distance 10 kms., Halka Outpost, Sarurpur. The name of the accused persons indicates in the Check FIR is that of the acquitted accused noted above including Rajbeer Singh, who had died after lodging of the first information report. The report was lodged as a cross case of Case Crime No. 588 of 2008, which was lodged on the same date, i.e. 16.8.2008 at 1:10 AM by the accused respondents herein.
4. The written report marked as Exhibit Ka-1 at the instance of the informant/appellant Devendra, examined as PW-2 records that appellant Devendra Singh along with Tejpal Singh and Pramod and others was sitting in his house at about 10:00 PM when a person named as Jagroshan came in inebriated condition and threatened to run over them by the tractor. Rajbeer Singh, Ummed Singh, Jagroshan, Hariya, Bhoora, Reena and Reeta and others armed with Farsa (Axe), Ballam (Spear), Bhala (Spear), Lathi (wooden stick) and Danda (Rod) came and assaulted them at his house.
It is then stated in the written report that the way to mines passes through the fields of the informant and their crops were being destroyed. The assailants were, however, talking about their loss.
After completion of the investigation, the police had submitted charge sheet against five accused persons namely Ummed, Jagroshan, Hariya @ Yogendra, Bhoora sons of Rajveer Singh and Rajbeer son of Moola (who had died (residents of Village Faizpur Ninana, Police Station Baghpat, District Baghpat).
The implication of accused respondents namely Reena and Reeta daughters of Rajveer Singh was found false by the police. The accused respondents namely Ummed, Jagroshan, Hariya @ Yogendra and Bhoora were charge sheeted by the Sessions Court Baghpat on 1.7.2010 under Sections 147, 148, 324 read with Section 149 IPC. They were also charge-sheeted under Sections 147, 148, 324/34 IPC on the same day. Four accused respondents noted above as also accused respondents Reeta and Reena were also charge sheeted under Section 325/149 IPC by the order of the Sessions Court dated 4.9.2012. All the accused persons had denied the charges, pleaded not guilty and demanded trial.
Prosecution Evidence:-
5. The Check writer/Constable Clerk examined as PW-1 had proved lodging of the first information report as Case Crime No. 588A/08 on 16.8.2008 at 4:30 AM. The Check Report was proved as Exhibit ''Ka-1' being in his handwriting and signature. The G.D. entry no. 15 at 4:30 AM was proved by bringing the original GD in the Court and the carbon copy of the same was placed on record, proved by PW-1 being in his handwriting, true to the original and having been prepared in the same process. The carbon copy certified by PW-1 was marked as Exhibit ''Ka-2'.
PW-1 stated, in cross, that he had prepared the Check report on the basis of the written report. He was confronted about the name of the informant mentioned in the written report. PW-1 also proved the Check report of Case Crime No. 588/2008 lodged by the accused respondents on 16.8.2008 at 01:10 AM as Exhibit ''Kha-1'. The G.D. entry of the same was proved as Exhibit ''Kha-2'. PW-1 stated that GD No. 44 at 13:25 hours dated 16.8.2008 recorded that two accused Pramod and Tejpal (of the appellant side) were arrested. The suggestion that appellant Devendra Singh brought the written report to the police station on his own was categorically refuted by PW-1. He stated that there was no entry in the GD dated 16.8.2008 about the arrest of appellant/informant Devendra and lodging of him in the lockup. The suggestion of the report (Exhibit Ka-1) being ante-time and the signatures of informant Devendra having been obtained later, on the written report, were refuted by PW-1. The statement of PW-1 was recorded afresh after summoning of two accused/respondents under Section 319 Cr.P.C. In his statement recorded on fresh examination, PW-1 again reiterated the preparation of the Check report and GD which were marked as Exhibits 'Ka-1' and 'Ka-2'. The suggestion that he had prepared Check report against the written report was refuted by PW-1.
6. PW-2 is the first informant/appellant herein who stated that he knew all the accused respondents herein who were residents of his village. All the accused were members of one family being sons and daughters of Rajbeer Singh. The statement about the occurrence as narrated in the written report was reiterated by PW-2 informant, in his examination-in-chief. He further added to the same by stating that the accused respondents were carrying ''Ballam', ''Farsa' and ''Lathi' and they assaulted them after coming in the house of the informant from their weapons. There was electricity light and the incident was seen by PW-2 in the said light. PW-2 further stated that Ummed was carrying ''Farsa', Hariya was having ''Ballam', Bhoora carried ''Lathi' and rest of the accused persons were having ''Lathi'. In the said incident, he, his brother Pramod, Tejpal, another Pramod and Dhirendra got injured. They also defended themselves. After incident, he came to the Police Station Baghpat along with the injured. The report of the occurrence was scribed by Satbeer, a villager and it was signed by PW-2 and given at the police station. The written report was shown to this witness and he had identified his signatures therein and that it was the same report which he dictated to scribe Satbeer, which was marked as Exhibit ''Ka-3'.
In his examination-in-chief, PW-2 stated that his injuries were examined at the Government Hospital, Baghpat. After that he and his brother Pramod were referred to Guru Teg Bahadur Hospital (GTB) Hospital, Delhi. Tejpal and Pramod were referred to Baraut Tejpal sustained fracture.
On confrontation, PW-2 stated that he did not scribe the report Exhibit ''Ka-3' at the police station rather it was scribed by Satbeer. He further stated that he got the report scribed on the date of the incident which was 15.8.2008. He further stated that he did not know as to whether the date was mentioned in the written report or not and further stated that his condition was not sound and hence the date of the incident and the date on which the report scribed was not mentioned therein. The suggestions that the written report was given on 16th in the afternoon was refuted by PW-2, he again denied that he himself wrote the report and given it.
PW-2 further stated that when he went to the police station along with the written report, his brother Pramod, Tejpal, another Pramod and Dhirendra had accompanied him. They reached at the police station at about 1:00 AM. He further stated that he went to the police station himself at 1:00 AM and Pramod and Tejpal were accompanying him. He reiterated that all of them including other abovenamed persons had reached at the police station on 15/16.8.2008l at 1:00 AM. The suggestion that SI O.P. Pawar of the Police Station Baghpat had arrested Pramod and Tejpal as accused on 15/16.8.2008 and brought them at the Police Station Baghpat at 11:25 PM was refuted by PW-2.
PW-2 admitted that criminal case namely Case Crime No. 588/2008 was registered at the Police Station Baghpat Kotwali at that time, however, stated that it was a false case and Rajbeer had died. The trial going in the Court with reference to the said case was admitted by PW-2. He further stated that he remained in the police custody for 4-5 days and, thereafter, he was arrested and sent to jail. PW-2 denied that he had sent the written report by another person in the police station in his defence on account of serious condition of injured Rajbeer. The suggestion that he was not in the police custody for 4-5 days and that he was absconding was refuted by PW-3. He reiterated that he was sent to jail after 4-5 days, his brother Pramod was also sent to jail. Apart from them, no one else was sent to jail. PW-2 had denied that he, his brother Pramod and Suresh son of Brahm Singh were arrested from Baghpat Bus station on 21.8.2008 by the police and they were sent to jail.
PW-2 in his cross-examination further described the road running in front of his house which was the main road running North-South and the main door of his house facing North. He also admitted that the sand loaded trucks were crossing from the main road and 'Kharanja' which were in front of his house and stated that the said Mine had been operated only for Once in the rainy season. He further stated that the time when the incident had occurred, the mine was being operated. PW-2 also admitted that sand loaded trucks were crossing in front of his house throughout the day and night. He further denied having knowledge of Mining lease of Sunil Kumar resident of Badhu at the time of the incident and accused Rajbeer and Ummed being partner of Sunil Kumar. He himself stated that he had no knowledge of the lease.
It was categorically stated by PW-2 that he was not the partner with Ummed and others in relation to his field nor the accused were neighbours of his field or his house and they were residing in another Mohalla. He also denied that the accused persons had ever fought election against him. PW-2 was confronted about the identification of the tractor, which was brought by accused Jagroshan. He was also confronted that whether the marks of tractor in his house were shown to the police and stated that though such marks were present but were not shown to the police as they all went to the police station but he had not told the investigating officer about such marks even in the police station.
He stated that they all defended themselves and in the defence, injuries were sustained by Rajbeer, Ummed, Hariya, Jagroshan. No injuries were sustained by Bhoora, Reena and Reeta. He stated that in his house where the fight had occurred, their blood and that of the accused persons had fallen but it was not shown to the police as they all reached at the Police Station. The fact of blood being inside his house was also not disclosed to the investigating officer. He then stated that blood oozed out from his injury and that of his brother and no blood oozed from the injuries of other three persons namely Dhirendra, Tejpal and Dhirendra. PW-2 stated that they sustained injuries of ''Farsa' and ''Ballam' and ''Ballam' was used as ''Lathi'. The incident had occurred for 3-4 minutes and he wielded ''Danda' in his defence and others along with him also used ''Danda'.
The suggestion that the accused persons had not attacked in his house on the date and time of the incident was refuted by PW-2. He also refuted that he along with others had attacked Rajbeer and others on 16.8.2008 at 00:30 hours.
The suggestions that sand loaded trucks were standing on the road at the time of the fight and that they intercepted the trucks to ask for money were refuted by PW-2. He refuted that they had attacked the accused persons herein when they tried to convince them and that Rajbeer had died due to the injuries inflicted by them. The suggestion that they had lodged a false case in order to get away from the case under Section 302 IPC was refuted by PW-2. He also denied that the doctor had not referred them looking to the seriousness of the injuries. Further suggestion that Pramod son of Harpal @ Lehri Galoor and Tejpal were arrested on 16.8.2008 at 12:30 PM and sent to jail was also refuted by PW-2. He was confronted with his 161 statement and stated that the categorical statement put to him, in the cross, was not incorporated therein. He also did not state in 161 statement that other accused persons had reached on the spot after 10 minutes of the attack by Jagroshan on the tractor. PW-2 stated that his statement was recorded in the jail after 1-½ months.
After summoning two more accused under Section 319 Cr.P.C., the main examination of appellant Devendra was recorded afresh on 25.8.2011. PW-2 had reiterated his earlier statement in the examination-in-chief and proved the written report again as Exhibit 'Ka-3', scribed by Satbeer and that their injuries were examined at the Government Hospital, Baghpat.
7. In cross, about implication of accused Reeta and Reena, PW-2 had admitted that in the incident, injuries were not sustained by Reeta and Reena and stated that if the involvement of these two accused persons had not been indicated in his 161 statement by the investigating officer, he could not say anything about it. The suggestions that he had falsely implicated the aforesaid two accused in order to build pressure and that false case was lodged to get away from the cross case under Section 302 IPC, were refuted by PW-2.
8. PW-3 Tejpal son of Ilam Singh had narrated the incident in the same manner stated as by PW-1. There is an inconsistency in the description of weapons in the hands of accused respondents in the statements of PW-2 and PW-3, though PW-3 had assigned ''Bhala' in the hands of Bhoora whereas PW-2 had assigned ''Lathi' to the said accused. PW-3 Tejpal stated that he, Devendra and both Pramod had sustained injuries in the incident and they all defended them. The incident was witnessed by him in the electricity light.
In cross, PW-3 Tejpal stated that his house was at a distance of 250 meters South from the house of Devendra (PW-1). He went to his tube-well but there was no electricity so he sat in the house of Devendra. The time when supply of electricity restored, was 10:30 PM. Pramod son of Lehri Galoor was having 'Hukka' while sitting there and he did not know as to why he was sitting. PW-3 then stated that he did not have a watch and the electricity supply came around 10:50-11:00 PM as per his estimation. The fight broke before the supply of electricity and then stated that Jagroshan started abusing before the electricity supply came and then Rajbeer and other came. When they started assaulting, electricity came at that time. PW-3 further clarified that oral altercation took place in the dark and the assault in the electricity light. All on the accused side had sustained injuries in the electricity light and when they were in jail, he came to know that Rajbeer had died on sustaining injuries. The place of the incident was also described by PW-3 and he admitted that trucks loaded with sand were crossing on the road in front of the house of Devendra and they were sitting in the ''Gher' of Devendra. The suggestion that lot of sand-dust came to the house of Devendra because of the passing of the sand trucks was refuted by PW-3 by answering that he had no knowledge of the same. He showed ignorance about the mining lease and the partnership of the accused in the same. PW-3 stated that no truck was present on the place of the incident or the road nearby it at the time of the incident. The suggestion that truck was there at the place of the incident was refuted by PW-3.
He (PW-3) stated that he, Devendra, both Pramod and Dhirendra went to the police station to lodge the report and the police had detained them at the police station. They reached at the police station at about 1-1:30 AM (during the night). The report was scribed outside the police station by Satbeer and Devendra (PW-2) gave it at the police station at around 2:00 AM. His (PW-3) statement was recorded by the police on 16.8.2008 but he did not remember the time and then stated that statement of no other person was recorded before him. PW-3 further stated that he Devendra and both Pramod were present on the spot at the time of the incident and Dhirendra got injuries in saving them. They (appellants side) had defended them only by ''Danda'. They were all sitting in the South of the ''Varandah' adjacent to the gallery of the ''Gher' of Devendra and the main gate was open. Jagroshan was abusing while standing on the road outside the gate. He abused Devendra by coming inside and they all tried to pacify him after opening the doors of the gallery but he did not listen to anyone and then they went and sat on the Cot. PW-3 then stated that they did not lock the door when they sat on the Cot and did not come out of the ''Gher'. All other accused persons came after 10-15 minutes and assaulted them (appellants side) inside the ''Gher'.
PW-3 had denied having seen blood in the ''Gher' of Devendra and stated that he suffered injuries and was not conscious. The fight had started at 10:30 PM and it occurred for about 2-3 minutes. The identity of the tractor i.e. its number could not be disclosed by PW-3 and he stated that Jagroshan did not being the tractor inside the ''Gher' rather he got down from the tractor at the time of the fight. PW-3 was confronted about his 161 statement and reiterated the injuries to him and others on the appellant side and that they had seen the incident in the electricity light. He was also confronted about the inconsistencies in his statement about the weapons assigned to the accused respondents. The time of the incident narrated in his statement under Section 161 Cr.P.C. being 12:00 midnight was put to PW-3 and he refuted the same by saying that he had told the investigating officer that the incident had occurred on 15.8.2008 at about 10:30-11:00 PM but as to why the time was changed was not known to him. The suggestion that he was making out a false case to get away from the cross case was refuted by PW-2. He, however, admitted that accused Reeta and Reena had not suffered injuries in the occurrence. On summoning of two other accused persons under Section 319 Cr.P.C., the examination-in-chief of PW-3 was again recorded. He reiterated his earlier version and stated that his X-ray was conducted in the Government Hospital Baraut and the bone of his hand was fractured.
In cross, again PW-3 stated that there was incident of fight between both sides and they acted in self defence. On a question put to PW-3, he stated that they (appellant side) were four in number whereas accused were six persons and fight had occurred between them and that he could not state categorically as to whom he caused injuries. PW-3 further stated that after his injuries were investigated at the Government Hospital Baghpat, he was not referred anywhere else. Then it was again stated by PW-3 that on the next day, police took them for X-ray to the Government Hospital Baraut. He (PW-3) further stated that he was detained at the police station on the date when his medical examination was done and on the next day and police took him for X-ray which was conducted in the afternoon at about 11-11:30 AM, and when their medical examination was done in the night, police had not arrested them but put him in the lockup along with Pramod. The suggestion that he was arrested along with Pramod at the Bus stand Sarurpur, while he was coming back from Baraut Government Hospital after getting X-ray at about 12:30 PM and the police used force to arrest them was refuted by PW-3.
He was further confronted about the implication of accused Reeta and Reena and the suggestion that false case was lodged by them was denied. In further cross by the defence, PW-3 Tejpal reiterated that his medical was conducted on 16.8.2008 at 11:30 AM during the day and along with him medical of Pramod son of Harpal @ Lehri Galoor was also conducted. The medical of all other on the appellant side was conducted on 15/16.8.2008 during night at C.H.C. Baghpat. PW-3 stated that there was no weapon in his hand by which he defended himself. The suggestion of the X-ray report being forged and there was no fracture in his hand and false evidence was prepared in order to give colour to the case were refuted by PW-3.
9. PW-4 Pramod son of Harpal aged about 34 years, brother of Devendra (PW-1) had narrated the occurrence in the same manner as has been stated by the PW-2 and PW-3. He also stated that they had defended themselves. Their medical examination was got conducted by the police at the Police Station Baghpat who took them on the same day and thereafter, he and his brother were referred to G.T.B. Hospital, Delhi where they were treated. Other two injured namely Tejpal and Pramod were taken to the Government Hospital Baraut by the police. In the cross of PW-4, it has come that appellant Devendra was village Gram Pradhan at the time of his deposition. It was admitted by PW-4 that the sand loaded trucks were crossing near their ''Gher'. The suggestion that they were demanding money from the trucks crossing in front of their house was refuted by PW-4. He had shown ignorance about the mining lease in the name of Sunil Kumar and the accused persons being the partners. The description of the place of the incident and his house was given by PW-4. He stated that the assault had occurred inside his ''Gher' and Rajbeer and others had also suffered injuries therein. The blood oozed out from the wounds of Rajbeer and Ummed and Hariya. No blood oozed from the injuries of Jagroshan. From others, Bhoora, Reeta, and Reena, he did not know anything. For his injury and that of Devendra, though blood oozed and fell on the ground but it was not shown to the investigating officer as they reached at the police station. He then stated that his condition was not good and he remained admitted in the G.T.B. Hospital for about 4-5 days. All injuries suffered by him were of ''Lathi' and ''Danda', he, however, could not categorise them. PW-4 stated that his statement was recorded by the investigating officer in the jail and he knew about the cross case lodged by the accused persons and stated that it was false. The suggestion that the report was lodged by them to save themselves from the case under Section 302 IPC. PW-4 was confronted about his 161 statement and stated that the reason of the missing fact therein was not known to him.
10. PW-5 doctor Yateesh Kumar is the Medical Officer posted in Community Health Centre, Baghpat on 16.8.2008. He had proved the injury report of the appellant side namely injured Pramod son of Harpal (PW-4), Tejpal son of Ilam Singh (PW-3) and Devendra son of Harpal (PW-2). He also proved the injury reports of Dhirendra, Pramod son of Harpal Singh @ Lehri Galoor as Exhibits 'Ka-1' to 'Ka-8'.
PW-5 stated that all injured were brought to the Community Health Centre, Baghpat with separate Chitthi by Constable Sallauddin Khan, Police Station Baghpat for medical examination. The injuries found on the person of Pramod Kumar son of Harpal is noted as under:
"(1) Red contusion 7cm x 2.5cm over end of wrist to mid of right thumb, swelling present.
(2) Red contusion 4cm x 2cm over right calf muscle."
Injuries on the person of Tejpal:
"(1) Traumatic swelling 5cm x 4cm left forearm lateral aspect & from wrist joint.
(2) Abrasion between index & middle finger base 1cm x 0.5cm.
(3) Abrasion 0.5cm x 0.5cm right side head."
Injuries on the person of Dhirendra:-
"(1) Red contusion & mild swelling 4cm x 2cm of right side neck."
Injuries on the person of Pramod:-
"(1) Lacerated wound 3cm x 0.5cm scalp deep right side head 9cm above right ear, margin irregular, fresh bleeding present on removing the gauze piece. (2) Multiple abraded contusion & swelling right side scapular and shoulder region in the area of 22cm x 16cm. (3) Complaints of pain in right leg"
Injuries on the person of Devendra:-
"(1) Incised wound 8cm x 1cm x bone deep right side top of head 7cm from right eye, margins clean cut, bleeding present. (2) Incised wound 2.5cm x 0.5cm bone deep 9cm from left ear.
(3) Complaints of pain in left shoulder"
PW-5 stated in examination-in-chief that it was possible of the injuries having been caused between 10-12 hours on 15.06.2008 from ''Lathi', ''Danda', ''Farsa' and ''Ballam'. PW-5 stated that he had prepared the supplementary reports of Pramod and Devendra sons of Harpal on 11.9.2008 on the basis of X-ray plate and X-ray report received from G.T.B. Hospital, Shahadara. Both the said reports were proved by him as Exhibits ''Ka-9' and ''Ka-10' being in his handwriting and signature.
In cross, PW-5 admitted that injuries of Pramod son of Harpal in X-ray were simple injuries which could have occurred by banging on a hard object. The injuries nos. 1, 2, 3 of Tejpal could have occurred by fall and they were simple in nature. Injuries of Pramod son of Harpal @ Lehri Galoor proved in Exhibit ''Ka-7' were also of simple nature and could have occurred due to fall. The injury no. 1 of Devendra could have occurred from ''Farsa', but in X-ray no fracture was found in the said injury and as such it was categorised as simple injury. He also admitted that there was no internal injury to any of the injured on the appellant side and their injuries were not of such dimension which could be described as deep cut. All injuries of the injured appellants were of simple nature. He admitted the injuries of accused were examined by him between 1:35 to 1:50 AM and that the injuries of accused Rajbeer (deceased), Jagroshan and Yogendra were serious in nature. The injury reports along with the supplementary reports of the accused persons were proved by PW-5 as Exhibit ''Ka-6' and ''Ka-7', being in his handwriting and signature.
The suggestion that he had prepared forged report of the injuries of the appellant side was refuted by PW-5.
11. PW-6 is the investigating officer who had conducted the investigation of Case Crime No. 588A/2008 lodged by the appellants. He stated that he was posted at the Police Station Baghpat on 16.8.2008 and investigation was assigned to him. On commencement of the investigation on the said date at 7:00 AM, he recorded the Check report, medical reports of all on the appellant side and the statements of injured Pramod son of Harpal @ Lehri Galoor and Tejpal son of Ilam Singh were recorded by him. On 18.8.2008, after arrest of Hariya @ Yogendra, his statement was recorded. The offence under Section 308 IPC was added because of the head injuries to appellant Devendra pursuant to the order of the C.J.M., Baghpat. On 22.8.2008, he recorded statements of other witnesses and he was transferred, thereafter.
In cross, PW-6 was confronted about the investigation made by him and the statement of injured Tejpal on the appellant side recorded under Section 161 Cr.P.C. PW-6 further stated that when he arrested Tejpal but he did not remember as to whether he had seen plaster in his hand.
12. PW-7 is the second investigating officer who had commenced investigation on 29.8.2008. He stated that he made entries of the supplementary reports of Pramod and Devendra in the Case Diary, recorded the statement of doctor (PW-5) and Section 308 IPC was deleted on finding that the injuries of Devendra were simple. Accused respondents Ummed and Bhoora @ Yogendra were arrested on 22.9.2008 and their statements were recorded, accused Jagroshan was arrested on 30.9.2008 and his was recorded. The statement of injured Dhirendra was recorded on 22.9.2008 and on his pointing out, the site plan of the place of the incident was prepared, which was proved as Exhibit ''Ka-11' in the handwriting and signature of this witness. The statements of informant Devendra, witnesses Pramod, Ashok and Pramod son of Harpal @ Lehri Galoor were recorded on 4.10.2008. On 8.10.2008, the statement of the scribe of the report namely Deepak was recorded and the charge sheet dated 8.10.2008 was submitted in the Court against the accused respondents herein, proved as Exhibit ''Ka-12'.
In cross, PW-7 stated that Dhirendra had mentioned the place of the incident on the main road outside the house of Devendra. The informant and other witnesses did not mention the names of Reeta and Reena as assailants in their 161 statement. They also did not mention the details as to which accused was carrying which weapon. There was no mark of any damage caused to the gate, ramp or inside the house of Devendra or marks of wheels of the tractor therein nor any such facts were told to him.
The suggestion that he did not conduct investigation in an impartial manner and false case was lodged under the pressure of the informant was refuted by PW-7.
13. PW-8 is the X-ray Technician of C.H.C., Baraut, District Baghpat who had proved the X-ray report of Tejpal by bringing the Medico Legal register and the copy of the same and the X-ray plate was filed by him in the Court. In cross, PW-8 admitted that the name of injured was not mentioned on the X-ray plate and the supplementary report which was sent, did not contain the number 1223 mentioned on the X-ray plate. The suggestion that he had prepared forged X-ray plate in connivance with the injured was refuted by him.
14. PW-9 is the Medical Superintendent posted at C.H.C., Baghpat, on 16.8.2008 and stated that he was also a Radiologist. He had identified the original X-ray plate 1223, which was marked as ''Material Exhibit-1'. The X-ray report was proved by him as Exhibit ''Ka-13'. In cross, PW-9 was confronted about the time of X-ray and admitted that the name of injured, date and time was not mentioned in the X-ray plate. The suggestion that he had prepared a forged X-ray report in connivance with the injured Tejpal and there was no fracture and it was mentioned in a forged manner was refuted by him.
Statements under Section 313 Cr.P.C.:-
15 The accused respondents had denied at all incriminating circumstances against him in their examination under section 313 Cr.P.C. The accused Ummed had described the incident reported by Sunil Kumar as Case Crime No. 588 of 2008 wherein his father Rajbeer had died and that the said case was pending in the Court. He further stated that the instant case was lodged falsely to get away from the aforesaid case. Other accused persons had also taken the same defence as that of accused Ummed. No evidence was led by the defence side. The accused persons had denied the injuries of appellant and the witnesses herein with categorical statement that forged medical examination was got conducted by them. Trial Court Findings:-
16. The trial court after noticing the above evidence, the injuries of the appellant side, had concluded that in the first information report which was lodged by the appellant Devendra on the second day of the incident on 16.8.2008 at 4:30 AM, there was no mention of the names of all accused persons nor any injuries caused to any of them, the date of incident has also not been indicated therein nor the date and time of the report has been indicated therein. The name of the applicant has been mentioned as "Devendra Singh" whereas signatures were of ''Devendra'. The name of the scribe had not been mentioned in the written report whereas PW-2 Devendra in his deposition stated that the report (Exhibit ''Ka-3') was scribed by Satveer.
17. The first information report, which was the basis of the prosecution case had, thus, been disbelieved by the trial court as evidence of the report of the occurrence. Further about the statements of appellant and the witnesses with regard to the injuries caused to them and other injured on the appellant side, it was noted that even the GD entry Exhibit ''Ka-2' did not mention about the injuries on the person of the informant and the persons accompanying him.
18. In the GD entry, it was mentioned that informant Devendra Singh was present with his companions Pramod, Tejpal, Pramod son of Harpal and Dhirendra but there was no description of the injuries on their person. There was discrepancy about the weapons described by the witnesses and mentioned in the written report. The informant was not sure about the date of lodging of the report and then stated that he did not mention the date in the report as his condition was not good. It was also noted by the trial Court that the informant PW-2 Devendra though stated that he along with other injured had reached the police station at 1:00 AM but no explanation could be offered as to why the report was lodged at 4:30 AM. No marks of attack by accused Jagroshan in the house of Devendra was shown by him. The trial court has noted that PW-2 Devendra stated that he sustained injuries from ''Farsa', ''Ballam' and ''Ballam' was used as ''Lathi' but the injuries on his person were of sharp-edged weapon and there was no injury of hard blunt object when ''Ballam' was used as ''Lathi'. There were inconsistencies in the statement of PW-2 informant and the investigating officer PW-7, who stated that the informant did not mention in his statement that other accused Rajbeer, Ummed, Hariya, Bhoora, Reeta and Reena came to his house after 10 minutes.
19. It was recorded by the trial Court that PW-7 Investigating Officer had categorically stated that PW-2 did not mention about participation of Reeta and Reena in the occurrence as assailants. It was admitted that Reeta and Reena had suffered no injuries and their names were not mentioned to the investigating officer. It was, thus, concluded that the accused Reeta and Reena were not involved in the incident. The averments in the first information report, the statements of PW-2 and PW-7 are contradictory to each other and the testimony of PW-2 was not creditworthy to substantiate the evidence. Similarly for the inconsistencies found in the statement of PW-3 Tejpal with his statement under Section 161 Cr.P.C. and the statement of PW-2, it was concluded by the trial court that accused Reeta and Reena were not present on the spot and the statement of PW-3 was untrustworthy. Similarly the credence was not attached to the statement of PW-4 Pramod Kumar for the material improvements from his version under Section 161 Cr.P.C. and inconsistencies with the statement of PW-4 and that of the Investigating Officer PW-7.
20. The trial court had concluded that though in the injury report Exhibit ''Ka-4' to ''Ka-8', total 12 injuries were shown to five injured namely Pramod, Tejpal, Dhirendra and another Pramod and Devendra but these injuries were not supported with the version in the written report (Exhibit Ka-3) scribed at the dictation of PW-2 as there was no mention of any injury and no such injuries were mentioned in the GD proved as Exhibit Ka-2 when all injured along with the informant were stated to be present in the police station at the time of lodging of the report. The trial court had, thus, drawn adverse inference against the prosecution that no injury had been caused to the prosecution side as there was no mention of the injuries in the first information report (Exhibit ''Ka-3') and GD (Exhibit ''Ka-2'). The prosecution has, thus, failed to prove its case beyond reasonable doubt. The accused persons, thus, had been acquitted for the offences under which they were charged.
21. Challenging these findings returned by the trial court, it was argued by Sri V. P. Srivastava learned Senior Advocate for the appellant and learned A.G.,A. that with the proof that all injured including the informant on the prosecution side were taken to the hospital at C.H.C., Baghpat by Constable Sallauddin Khan along with 'Chitthi Majroobi' and they were medically examined by PW-5, who had proved the injury reports having been prepared by him after examination of the injured on the appellant side, the trial Court had committed grave error of law in rejecting the injury reports simply on the ground that injuries of the prosecution side were not mentioned in the first information report (Exhibit ''Ka-3') and G.D. (Exhibit ''Ka-2'). It was argued that the doctor PW-5 categorically stated that all injured were brought to him along with separate Chitthi by Constable Sallauddin Khan, Police Station Baghpat for medical examination, there was no scope to doubt the testimony of this witness on the premise that the injuries were not mentioned in the report lodged by the informant appellant/PW-2 Devendra.
22. The contention is that the appellant and injured prosecution witnesses had pleaded self defence and stated that they had wielded weapons in self defence. There was no reason to doubt this version of the witnesses by the trial court. The Investigating Officer (PW-6) had proved that he commenced investigation on 16.8.2008 at 7:00 AM soon after the lodging of the first information report and entered the medical reports in the Case Diary on the said date, which was the proof of the injuries sustained by the prosecution witnesses in the occurrence.
23. The minor inconsistencies in the statement of injured prosecution witnesses were liable to be ignored and the trial court had committed grave illegality in reading too much into these inconsistencies. From the evidence of the experts in the medical field namely PW-5 and the investigating officer PW-8 and PW-9, it was proved that all prosecution witnesses had suffered injuries in the same occurrence and their version that they had caused injuries to the accused persons in defence was the true narration of the occurrence. There was no reason to discard their testimony as untrustworthy.
24. In rebuttal, Sri Brijesh Sahai learned Senior Advocate for the accused had argued that the present appeal is against acquittal. The interference in the findings of the trial court is not permissible, just because the Appellate Court can reach at another possible view on appreciation of the evidence. The perversity in the findings of the trial court has to be established by the accused on the anvil of the findings of the trial court being against the record or on extraneous consideration. The findings returned by the trial court, as noted above, were read before us by the learned Senior Advocate to substantiate his submissions that the injuries on the prosecution side were not believable to have been caused in the same occurrence, inasmuch as, the Check writer PW-1 had not stated that after lodging of the report, he had sent the injured/prosecution witnesses to the Community Health Centre, Baghpat by preparation of 'Chitthi Majroobi' along with Constable Sallauddin Khan. The GD does not record the names of the prosecution injured witnesses. It was argued that though the first information report is not an encyclopedia and minor details might not be mentioned there but the basic edifice of the prosecution case has to be disclosed therein. The date, scribe, the beginning of the incident are all absent in the first information report. The arms in the hands of the accused persons and knowledge about the weapons in the hand of the accused, source of light, the injuries caused to the prosecution witnesses are not mentioned in the FIR. The version of the prosecution witnesses in their statement under Section 161 Cr.P.C. and further in the Court are material improvements which proved that it was a result of afterthought, in order to save the prosecution witnesses from the criminal case under Section 302 IPC lodged by the accused side.
25. The contention is that the motive as stated in the written report rather shows that the accused side had suffered loss on account of the act of the prosecution witnesses. The entire story put forth by the prosecution witnesses smacks of tutoring and the genesis goes to the very root of the murder case. The motive as narrated in the first information report lodged by the accused side, proved in the present case by PW-1, Check writer was omnipresent, omnipotent from the version of the informant/appellant Devendra in the present case. The entire prosecution story is a result of confabulation and full of condiments.
The submission, thus, is that the prosecution could not prove its case beyond reasonable doubt and no infirmity much less perversity can be shown in the findings returned by the trial court. The appeal deserves to be dismissed being devoid of merits.
26. Having considered the evidence on record led by the prosecution, the findings returned by the trial court as also the arguments of the learned counsels for the parties, we find that the prosecution, in the instant case, had not been able to explain as to why the report of the crime was given at 4:30 AM on 16.8.2008 when the incident had occurred on 15.8.2008 at 10:00 PM and as per the informant Devendra, they had reached the police station at 1:00 AM. The written report lodged by the informant Devendra did not mention the date of the incident nor the date of lodging of the report. The Check Writer PW-1 though proved the lodging of the FIR as a cross case based on the written report Exhibit ''Ka-3' but categorically stated that the report was not brought to the police station by the informant Devendra.
27. In cross, PW-1 only proved that he had prepared the Check report on the basis of a written report. He also stated that there was no entry in the GD dated 16.8.2008 about the arrest of informant Devendra and lodging of him in the lockup. He proved that GD No. 44 at 13:25 hours dated 16.8.2008 had mentioned about the arrest of two accused Pramod and Tejpal in Case Crime No. 588/2008 lodged by the accused herein though PW-1 had denied the report of the present case having been lodged ante-time. There is no mention in the statement of PW-1 that the informant and the injured prosecution witnesses came to the police station along with the written report Exhibit ''Ka-3' and they were sent to the Community Health Centre, Baghpat for examination of their injuries. The first investigating officer (PW-6) who was posted in the Police Station Baghpat at the time of the registration of Case Crime No. 588A/2008 lodged by the prosecution side only proved that he recorded the medical reports of the prosecution witnesses in the GD and statements of Pramod son of Harpal @ Lehri Galoor, Tejpal son of Ilam Singh. The statement of the informant PW-2 that he went to the police station along with other injured prosecution witnesses and reached their at 1:00 AM (before lodging of the report of the accused side) is not proved by any material evidence on record nor by the statement of any of the prosecution witnesses as noted above. Rather from the statements of investigating officers namely PW-6 and PW-7, it is evident that the prosecution witnesses were arrested by them after lodging of both the cross cases and their statements under Section 161 were then recorded. The statements of two prosecution witnesses who were arrested on 16.8.2008 were entered in the Case Diary and the informant Devendra, prosecution witnesses Pramod, Ashok and Pramod son of Harpal were recorded on 4.10.2008. It is proved from the record that all the prosecution witnesses had absconded after the occurrence. The statement of PW-2 Devendra that he was detained at the police station and was arrested after 4-5 days is unbelievable.
The contents of G.D. entry no. 15 at 4:30 AM of the Case Diary (Exhibit ''Ka-2') that the copy of the first information report was given to the informant and the informant along with other companion was sent to the Community Health Centre, Baghpat for investigation along with 'Chitthi Majroobi' is not substantiated from the statements of the prosecution witnesses namely PW-1, Check writer who had proved the said GD and stated that it was written by him. PW-1 had merely proved that he had disclosed the factum of the Check report in the GD No. 15 at 4:30 AM and proved the same as Exhibit ''Ka-2'. However, the overleaf of the GD entry no. 15, i.e. the second page of the GD wherein the entries with regard to the injuries on the person of injured and his companion and preparation of 'Chitthi Majroobi' and sending to injured to Community Health Centre, Baghpat for medical examination was not proved by PW-1. The perusal of the said page of the GD where these facts have been recorded further shows that it was noted therein that the investigation was handed over to S.I. Ompal Singh Pawar (PW-6) and he had already left to the place of the incident, i.e. Gram Faizpur Ninana.
28. From the careful reading of the said entry in the Case Diary, it is more than evident that the entries with regard to the injuries on the person of injured and other companions sent to the C.H.C. Baghpat along with the Constable Salauddin for medical examination was made subsequently without any intimation to PW-6, the investigating officer who had received investigation on 16.8.2008 and left for the place of the incident. The findings returned by the trial court that the injuries of the prosecution witnesses proved by PW-5 were not believable as there was no mention in the written report Exhibit ''Ka-3' or entry in the GD Exhibit ''Ka-2' about their injuries, thus, is substantiated from the record.
Other inconsistencies noted in the statements of prosecution witnesses by the trial court cannot be said to be minor inconsistencies as they go to the root of the matter and cannot be ignored.
In addition to what has been recorded by the trial court from the evidence of the prosecution, it is also relevant to note that the place of occurrence of the incident as narrated by the prosecution witnesses being the house and ''Gher' of appellant Devendra is further contradicted from the prosecution version itself, i.e. the statement of the investigating officer PW-7, who had prepared the site plan of the incident. PW-7 stated that the site plan of the incident was prepared at the instance of Dhirendra, one of the injured prosecution witnesses whose injury report has been proved as Exhibit ''Ka-6'. He stated that Dhirendra had described the place of the incident on the main road outside the house of Devendra. He also stated that no mark of rampage or wheels of tractor as alleged in the attack by accused Jagroshan were shown to him nor anything was told to him about that. The site plan proved by PW-7 as Exhibit ''Ka-11' shows the place of the incident as (A) which is located on the road running East-West outside the house and ''Gher' of Devendra.
29. The informant Devendra who claimed to be present in the police station at the time of lodging of the report had not led the investigating officer to the place of the incident to give the details. The presence of the informant along with the other prosecution witnesses in the police station for lodging of the first information report is not proved from their testimony or that of the formal witnesses. Rather the record proved otherwise, that all on the prosecution side had absconded and the report was sent to the police station by the prosecution witnesses and they later managed to get themselves investigated at the C.H.C. Baghpat and the entries in the GD and the 'Chitthi Majroobi' carrying their injury reports are the result of manipulation made at the instance of the prosecution witnesses.
Contradictions in the version of the prosecution witnesses about the nature of weapons used and the injuries sustained by them, cannot be ignored.
30. From the statement of the informant PW-2, it is evident that there was no enmity of the accused persons with the prosecution side. From the reason for the fight as stated in the written report (Exhibit ''Ka-3'), it seems that the motive to initiate the fight was with the prosecution side.
31. Be that as it may, for the inconsistencies in the statements of the prosecution witnesses, their version of sustaining injuries in the occurrence was found doubtful. For the additional reasons noted above, we do not find any infirmity in the findings returned by the trial court. Even any other view is not possible from the careful perusal of the evidence on record.
No interference, as such, can be made in the judgment of acquittal of the accused persons.
The appeal filed by the informant Devendra and the Government Appeal challenging the judgment of acquittal are found to be devoid of merits and hence dismissed.
The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.
(Subhash Chandra Sharma, J.) (Sunita Agarwal, J.)
Order Date :- 16.12.2022
Brijesh