Allahabad High Court
Bhanu Pratap Singh Yadav vs State Of U.P. And 2 Ors. on 22 October, 2020
Equivalent citations: AIRONLINE 2020 ALL 2398
Bench: Sunita Agarwal, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 18.02.2020 Delivered on 22.10.2020 Court No.34 Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 4 of 2019 Applicant :- Bhanu Pratap Singh Yadav Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Ram Prakash Patel Counsel for Opposite Party :- G.A. Hon'ble Mrs. Sunita Agarwal, J.
Hon'ble Dinesh Pathak, J.
(Per Hon'ble Dinesh Pathak, J.)
1. Heard Shri Ram Prakash Patel, learned counsel appearing for the appellant on admission.
2. The instant appeal under Section 372 Cr.P.C. has been preferred by the informant/appellant challenging the judgment and order dated 25.09.2018 passed by the Additional Sessions Judge/Fast Track Court (Offences against Women), Rampur in Sessions Trial No.306 of 2012, acquitting the accused persons namely, Chhattrapal (respondent no.2) and Rakesh (respondent no.3) for commission of the alleged offence under Section 307 IPC, arising out of Case Crime No. 1141 of 2012, Police Station-Civil Lines, District-Rampur.
3. As per the version of the First Information Report (hereinafter referred to as "FIR"), on 12.04.2012 at 4:00 P.M., the informant-Bhanu Pratap Singh Yadav (PW-1) along with his wife Vimla Devi (PW-2) went to Guddu's house at Punjab Nagar, Rampur to know the well being of his mother and son. He left his wife there and went away Vijaeeya to attend reception of the daughter of Operator Bulakhi Ram and to collect the installment from Kamal Singh. Therefrom, he came back to Punjab Nagar, took his wife and gave receipt to Vijay at Wajinagar. Thereafter, his wife asked him to go via his village so that they could meet his mother and to know her well being. At about 7:30 PM, while they were coming comfortably towards the village, he saw two persons standing on the road adjacent to the agricultural plot of Kewal and recognized them as Chhattrapal son of Swaraj and Rakesh son of Chandrapal in the light of his motorcycle's headlight. Two more unknown persons were also standing there at some distance. Chhattrapal shot fire at the informant, due to which his motorcycle tottered down towards the right side in the agricultural plot of Kewal, but the fired bullet hit on the temple region of his wife. In retaliation, the informant, after balancing himself, fired three shots from his service revolver. Thereafter, the accused persons opened indiscriminate firing and fled away towards the forest. The informant saw his wife lying down on the road in unconscious condition. He rang to his family members. Sunil son of Pappu immediately rushed to him and asked as to who had shot fire, then the informant took the name of the aforesaid two accused persons. Sunil told him that he saw Chhattrapal and Rakesh on the culvert while they were running towards forest. On his information to the police by phone, police force reached there and took him and his wife to the hospital through police vehicle and got her admitted. The police left the informant to look after her.
4. On the written report dated 12.04.2012 (Exhibit Ka-1) submitted by Bhanu Pratap Singh Yadav (PW-1), FIR dated 12.04.2012 (Exhibit Ka-7) has been lodged at about 23:40 hours registered as Case Crime No. 1141 of 2012 under Section 307 IPC, Police Station Civil Lines, District Rampur against Chhattrapal (respondent no. 2), Rakesh (respondent no. 3) and also against two unknown persons.
5. On 12.04.2012, the victim (w/o informant) was medically examined at about 8:30 p.m. in the District Hospital, Rampur by Dr. Lalit (PW-3), Medical Officer (EMG), District Hospital, Rampur who had prepared and signed the medical report dated 12.04.2012 (Exhibit Ka-2) showing three injuries on the body of the victim. Dr. Lalit had also submitted supplementary medical report dated 14.04.2012 (Exhibit Ka-3), after considering the X-ray report of the victim. First medical report dated 12.04.2012 and the supplementary medical report dated 14.04.2012 are as follows :-
First Medical Report dated 12.04.2012 :-
(1) Multiple firearm wound of entry of size ranging from 0.4 cm x 0.4 cm to 0.3 cm x 0.3 cm x depth not probed on right side of fact and right side back of head in an area of 13 cm x 4 cm collor of abrasions present oozinal of blood present. KUO advised X-rays.
(2) Fire wounds of entry (two in number) of size 0.3 cm x 0.3 cm x depth not probed on dorsal aspect of right forearm and right hand 07 cm aparts of each other KUO oozinal of blood present.
(3) Abraded contusion 3 cm x 2 cm on top of right shoulder Opinion Injury No.(1) and (2) are KUO Advised X-ray of skull AP/Lat fal. Injury No.(1) for Injury No.(2) advised X-ray of Right forearm c Rt. Head AP/Lat injury no.(3) KUO Advised X-ray of Rt. Shoulder AP/Lat. Injury no.(1) and (2) caused by firearm and Injury no.(3) is caused by hard and blunt object. Duration about fresh Sd. (Dr. Lalit) Attested Sd. Ashish Medical Officer (EMO) Dist. Hospital.
Supplementary Medical Report dated 14.04.2012 :-
Supplementary Report of Vimla Devi aged about 35 years/F, wife of Bhanu Yadav R/o Sai Vihar Colony Jawala Nagar P/S Civil Line, Rampur who was examined by me on dated 12.04.2012 at 8:30 PM in D.H.R. Injury no.(1), (2) and (3) were KUO Advised X-Rays Skull, Right forearm Right hand and Right shoulder.
X-Ray Report no.453 dated 13.04.2012 by Radiologist D.H. Rampur shows that X-Ray Skull-Six Small Radio-opeque X-Ray Rt. Forearm c Rt. Hand-Two Shadows of metallic density seen X-Ray Rt. Shoulder-NAD Opinion: Hence injury no.(1), (2), (3) which were KUO are simple in nature."
6. After investigation, the Investigating Officer (hereinafter referred to as "I.O.") has submitted the charge-sheet dated 10.05.2012 (Exhibit Ka-5) against Chhattrapal and Rakesh under Section 307 IPC. On the said charge-sheet, learned Magistrate took cognizance vide order dated 11.07.2012 and committed to the Sessions Court for trial.
7. Vide order dated 10.04.2013, the learned Court has framed charges against both the accused persons under Section 307 IPC.
8. As to hold guilty, the prosecution has produced as many as five witnesses.
9. PW-1, Bhanu Pratap Singh Yadav (Informant), had stated that he was residing in Sai Vihar since last 13-14 years and his other family members were residing in the village Raipur. On 12.04.2012 at about 4:00 P.M., he and his wife went to the residence of Guddan at Punjab Nagar. While returning along with his wife by motorcycle, at about 7:30 P.M., he reached near the agricultural plot of Kewal and saw Chhattrapal and Rakesh standing on the road to whom he recognized in the light of his motorcycle's headlight. Besides them, two more unknown persons were also standing there. Chhattrapal shot fire at him and his wife with an intention to kill them due to political antipathy. The fired bullet hit on the temple region of his wife. Thereafter, the informant had opened fire and discharged three shots from his service revolver. Thereafter, the accused persons fled away by opening indiscriminate firing. He saw his wife lying on the road in unconscious condition. Sunil and other persons reached on the spot after receiving a telephone call from the informant. Sunil told him that on the same day he saw Chhattrapal and Rakesh running away through a culvert. On his information, police personnel reached there, took the informant and his wife to the District Hospital. He had proved the written report as Exhibit Ka-1.
10. PW-2, Vimla Devi, wife of Informant, had supported the version of FIR. She had deposed that on being hit by firearm, she and her husband fell down on the ground. The accused persons ran away towards the village and her husband had followed them with his service revolver. She further stated that due to election antipathy, the accused persons were intending to kill them, but she alone had sustained gun shot injury. She had also stated that after 05-06 months, it came to their knowledge that Satyapal and Pappu @ Jai Singh were also involved in the incident. They challenged her husband that he could not do anything.
11. PW-3, Dr. Lalit had accepted that the medical examination of victim, Vimla Devi was conducted by him and proved her medical report dated 12.04.2012, prepared and signed by him, as Exhibit Ka-2 and also proved the supplementary medical report dated 14.04.2012, as Exhibit Ka-3, which was also prepared and signed by him after perusing the X-Ray report dated 13.04.2012. It is stated by Dr. Lalit (PW-3) that there was no letter written by police for medical examination of victim. Even after completion of medical examination, no permission of Chief Medical Officer (hereinafter referred to as "C.M.O.") had been obtained and submitted by injured.
12. PW-4, Ram Khiladi Solanki (Retired Inspector) is the Investigating Officer of the case and had proved the Site Map dated 13.04.2012 as Exhibit Ka-4 and the Charge Sheet dated 10.05.2012 as Exhibit Ka-5.
13. PW-5, Narendra Kumar Sharma (Constable No.258) had proved that he had prepared the original Chik FIR and endorsed in General Diary No.64. He had proved the General Diary as Exhibit Ka-6. He had also proved the Chik FIR as Exhibit Ka-7.
14. In reply to questions put to them, while recording their statements under Section 313 Cr.P.C. by Court below, accused persons had denied their involvement in the incident in question, pleaded their innocence and claimed for trial on merits.
15. After considering the facts and circumstances of the case and the evidence available on record, learned Trial Court, vide impugned judgment and order dated 25.09.2018 has acquitted both accused persons from the charge under Section 307 IPC, which is under challenge in the instant criminal appeal.
16. Learned counsel for appellant had submitted that the Court below had passed the order without considering the material evidence available on record. Bhanu Pratap Singh (PW-1) is the ocular witness of the crime in which his wife Vimla Devi (victim/PW-2) had sustained gun shot injury but the learned trial Court had illegally disbelieved the statement of PW-1 and ignored the injuries sustained by the victim. It is also submitted that accused persons had criminal intention to kill the informant due to political rivalry, inasmuch as, both the parties had antipathy due to election of Pradhan. He has also emphasized the medical report showing several injuries on the body of victim from where blood was oozing out, which had been caused due to firearm. Learned Court below had passed the impugned judgment and order in a cursory manner, without applying judicial mind, only on the basis of conjectures and surmises. Witnesses adduced on behalf of appellant have fully corroborated prosecution case whereas defence failed to produce any credible evidence in their support. Learned counsel for the appellant has submitted that the Court below had misread and misinterpreted the evidence available on record and illegally acquitted the accused on technical ground, which is not sustainable in the eyes of law.
17. We have carefully considered the submissions advanced by the learned counsel for the appellant, perused the impugned judgment passed by the Trial Court and the Lower Court's record, which was summoned in pursuance of the order dated 04.01.2019 passed by this Court.
18. The present appellant/informant (PW-1) has made opposite party nos. 2 and 3 as accused of attempt to murder with an allegation that they had intentionally shot fire at him, but unfortunately his wife (PW-2) had sustained gun shot injuries. The aforesaid incident allegedly took place on 12.04.2012 at about 7:30 p.m., while he was returning back along with his wife from Punjab Nagar to his village. Just after three kilometers from Punjab Nagar, he saw two persons standing on the road, whom he recognized in light of his motorcycle's head light, as present respondents no. 2 and 3. At the time of incident, it was quite dark and the road was desolate. Chhattrapal (accused) had shot single fire inflicting injuries to the wife of the appellant/informant. In retaliation, the appellant had also opened three fires but by that time the accused fled away by making indiscriminate firing. Thereafter, he saw that his wife was injured and lying on the road. On his telephonic information one Sunil and other persons reached there. Sunil had informed that he saw Chhattrapal and Rakesh while they were running through culvert. On his telephonic information about the incident the police personnel reached on the place of occurrence and took them to the hospital by official jeep. After getting his wife admitted in the hospital, he went to the police station to lodge FIR.
19. During trial, the appellant/informant had moved an application dated 27.05.2014 being Paper No. 40-Ka under Section 319 Cr.P.C. to summon Satyapal and Pappu @ Jai Singh alleging therein that these two persons were also present on the spot but could not be named in the FIR. The learned Trial Court had rejected the application vide order dated 20.04.2015.
20. The learned Trial Court has raised doubt qua facts and circumstances of the present case wherein the appellant/informant and his wife had been attempted to be killed by the accused/ respondents no. 2 and 3. The learned Trial Court has pointed out several discrepancies and contradictions in the statement of prosecution witnesses and the circumstantial evidence and found it appropriate to acquit both the accused persons.
21. The version of FIR could be discussed in two perspectives. First, occurrence of crime under which fire was shot by the accused persons inflicting the injuries to PW-2 (i.e. wife of informant). Second, information of the crime under which informant, PW-1 had telephonically informed his family members and the police, who took them to the hospital.
22. So far as the first part of FIR, regarding the occurrence of crime, is concerned, there are several discrepancies and contradictions in the statements of witnesses of fact, namely, PWs-1 and 2 respectively, which creates doubt with respect to the facts and circumstances of the case in which alleged crime said to have been occurred. No recovery of firearm is shown which was allegedly used by accused persons in the crime scene. That apart, service revolver of PW-1 and three empty cartridges, as stated by PW-1, has also not been recovered by the police. The non-recovery of gun or pistol or country made pistol, which is not made clear in the FIR, and used cartridges from the said firearm, creates doubt with respect to happening of the occurrence. I.O. (PW-4) had categorically stated that he had not found any empty cartridge on the spot, neither he recovered any used cartridge from the barrel of licensee revolver. He had also denied the presence of blood stain on the place of occurrence.
23. As per prosecution case, informant was going by motorcycle from Punjab Nagar to his village and road was running from west to east. Incident took place after three kilometers beside the agricultural field of Kewal, which is situated on the southern side. PW-1, in his cross-examination, has stated that the accused persons were standing fifteen steps away towards the south side from the place where he received bullet injury. Such event of bullet injury received by the appellant has neither been mentioned in the FIR nor deposed by him in his examination-in-chief. Even there is no medical report available on the record to corroborate his statement in this respect. In his cross-examination, PW-1 has stated that while he had been challenged by the accused persons, his motorcycle was tottered and he fell down along with his motorcycle towards southern side in the agriculture field of Kewal but his wife remained standing on the road just four steps away from the agriculture field of Kewal. While he fell down, the accused Chhattrapal shot one fire on the appellant/informant whereas, in the FIR and in the examination-in-chief, it has been mentioned that he and his wife were coming by motorcycle, Chhattrapal shot fire at him which inflicted injury to his wife who fell down on the road and he saw his wife injured lying on the road.
24. Timing of inflicting injuries to the victim is different as mentioned in the FIR, examination-in-chief and the cross-examination of PW-1. In examination-in-chief, PW-1 stated that his wife sustained gun shot injury on the way while she was sitting on the motorcycle and coming to the village, but in cross-examination he stated that his wife had sustained gun shot injury when she was standing on the road. PW-1 deposed that while he received bullet injury, the accused persons were standing fifteen steps away towards south whereas later on, he had deposed he was not injured rather his wife had sustained injury.
25. As per deposition made by PW-1, his wife was unconscious due to bullet injury and had been taken by the police to the hospital where she regained consciousness at about 2:30 A.M., whereas, on the other hand, the I. O. has stated that he could not find any evidence that the injured victim (PW-2) had been carried by the police jeep to the hospital for medical examination. That apart, sequence of events as narrated by PW-2, i.e. after sustaining gun shot injury until her admission in the District Hospital, indicates that she was fully conscious even after sustaining injury and she had observed all activities from the beginning of the incident until her discharge from the hospital. There is nothing on record to prove that at the time of medical examination i.e. 8:30 P.M., victim was brought to the hospital in unconscious condition. No such endorsement, regarding her unconscious state, is depicted in the medical report.
26. Deposition made by PW-2 is also full of contradiction and hard to believe. In her cross-examination, she had stated that she was in her house at Sai Vihar, Rampur, till 4:00 P.M., and thereafter, she had reached house of Guddu in dark atmosphere. On the contrary, PW-1 had stated that it was not dark, while he started from the house of Guddu, about 7:00 P.M., with his wife to his village-Raipur. According to PW-2, from the house of Guddu, she along with her husband departed to her house at Sai Vihar, Rampur, whereas, PW-1 has stated that they were going to their village-Raipur. Therefore, according to PW-2 they were not going to Raipur.
27. As per deposition made by PW-2 agriculture field of Kewal was situated hardly about ½ km from the house of Guddu, whereas, during his examination-in-chief at page-5, PW-1 had deposed that place of incident is situated near agriculture field of Kewal, was about 3 km far away from the house of Guddu. There is an absolute difference between ½ km and 3 km, which creates doubt with respect to the place of occurrence. As per deposition of PW-2, road was unpaved and there was darkness on the desolated road and the motorcycle was being driven towards east side of the road. In the Site Map (i.e. Exhibit Ka 4) road coming from Punjab Nagar to Raipur is shown running from west to east. Towards south, adjacent to the road, agriculture field of Kewal has been shown to be situated, where the incident took place. As per deposition of PW-1, while he was coming back on the motorcycle, his wife (PW-2) was sitting on the back seat with joint knees facing towards north. According to Site Map (Exhibit Ka 4) and as per version of prosecution, accused persons were standing on the south side and therefrom they shot fire, meaning thereby, accused persons were standing towards right side of the running motorcycle (i.e. west-east) and face of victim was towards left side of running motorcycle. On the contrary, PW-2 has deposed at page-6 that she was sitting on the motorcycle with her joint knees towards right side and her husband was driving the bike facing east side. Therefore, as per her statement, she was facing right side (towards south) and the motorcycle was running from west to east. Therefore, according to her statement, accused persons were standing towards left side of the motorcycle and on instigation of Rakesh, Chhattrapal had shot fire from left side. On single fire, she sustained injury on her head, thereafter, accused persons fled away towards the village by opening indiscriminate firing. According to her deposition, she fell down on the right side of the motorcycle immediately after sustaining bullet injury and was little bit conscious. Learned trial court has observed that though PW-1 is a lady, who belongs to rural area, but she was well acquainted about all the four directions.
28. PW-2 has deposed that her husband went towards east chasing the accused persons, whereas as per prosecution case as well as the Site Map (Exhibit Ka 4), accused persons fled away towards south direction. PW-2 has stated that on the spot where she fell down, blood oozed out from her wound. On the contrary, PW-4 I.O. has deposed in his cross-examination that he did not find any blood stains on the spot. As per statement of PW-2, one pellet injury was inflicted on her back side below the waist, but in the injury report, no injury has been shown on that part of her body. Later on, she stated that she sustained said injury because of falling down on the earth. At page-'8', she has deposed that she had nowhere stated that after chasing the accused persons, her husband returned back after 10-15 minutes and till he returned the motorcycle was lying there, beside her. She stated that her husband did not sustain any injury even after falling down from the motorcycle. But, later on she deposed that her husband had made balance, of motorcycle, with his legs, therefore, the motorcycle had not fallen down rather, she alone fell down from the motorcycle.
29. As per prosecution, while PW-2 sustained injury on her temple region, the motorcycle fell down towards right side in the agriculture field of Kewal. As per statement of PW-1, he and his motorcycle fell down in the agriculture field of Kewal and his wife remained standing on the road. Therefore, there is major contradiction with respect to the physical position of PW-1 and PW-2 on the spot. Even position of the motorcycle is also doubtful in the light of statements made by PW-1 and PW-2. PW-1 deposed that after sustaining bullet injury, his wife became unconscious and remained in that condition till 2:30 A.M. in the night, whereas, statement of PW-2 shows that she was conscious. At page-'3', she stated that she was lying on the road for 15-20 minutes, thereafter, his Jethh (brother-in-law) came on the spot and after half an hour, police reached on the spot and took her along with her husband to the Rampur Hospital. From there, they reached hospital within 15 minutes and doctor had examined her injuries and she was admitted there. However, she was not sure about the time by which she reached the hospital.
30. Surrounding circumstances as deposed by PW-2 and the statement/reply of accused under Section 313 Cr.P.C. reveal that political rivalry existed between both the parties. Victim (PW-2) and wife of Satyapal (brother of Chhatrapal/accused) had contested the election of Pradhan and wife of Satyapal had won the election, since then PW-1 informant bears enmity. In this backdrop of fact, it seems improbable that Chhatrapal committed the crime out of enmity, whereas his sister-in-law had won the election of Pradhan. On the other side, informant could have chance to bear the political antipathy and had got the motive to falsely implicate the accused persons in criminal case, inasmuch as, his wife (PW-2) was defeated in the said election.
31. Though the minor discrepancies or contradictions are not of much relevance in examining the facts and circumstances responsible for the commission of the crime, inasmuch as, with the passage of time when witnesses are called in the witness box, they may have some problem, for many reasons, in recollecting the exact happening which took place on the date of occurrence. In this respect, Hon'ble Supreme Court in Bharwada Ghoginbhai Hirjibhai v. State of Gujrat, AIR 1983 SC 753, has expounded the law showing several conditions wherein minor discrepancies could be occurred and same should be ignored. The relevant portion of paragraph 5 and paragraph 6 are being quoted below :
"5. ..............................Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
32. In the present matter, as discussed above, glaring contradictions and discrepancies have been found and such discrepancies affected the genesis of the crime. All discrepancies, totters basic version of the witnesses, which affects the accusation made by prosecution and the occurrence of crime.
33. So far as second perspective qua information of the crime is concerned, we are not satisfied with its correctness in the light of chronology of events as portrayed by the prosecution. It is mentioned in the FIR that when informant rang his family members by his mobile phone, one Sunil immediately rushed to the place of occurrence, but unfortunately Sunil, who is informant's relative, had not been brought in the witness box to corroborate the prosecution case. Sunil appears to be an important witness to authenticate the presence of PWs-1 and 2 at the place of occurrence, injury of PW-2 and the presence of the police, who reached on the spot after him.
34. Perusal of FIR evinces that in presence of Sunil, informant dialled his mobile phone to call the police for help who, in turn, reached on the spot and took them to the hospital for medical examination. Statement of I.O. (PW-4) does not corroborate the prosecution case with respect to arrival of the police on the informant's call and taking the victim and her husband (informant) to the hospital. Factum of arrival of the police on the spot and phone call of PW-1 has been denied by the I.O. (PW-4), who has stated in his cross-examination that there is no evidence on the record to prove that victim had been carried to the hospital by the police jeep. The relevant portion of statement of PW-4 is being quoted below :-
"विवेचना के दौरान ऐसा कोई साक्ष्य मुझे नहीं मिला कि घटनास्थल से चुटैल विमला देवी को उठाकर थाने की पुलिस जीप में डालकर डाक्टरी मुआयने के लिए पुलिस ले गयी हो।"
35. In case, the incident was informed by the informant to the police, who reached on the spot at informant's phone call, there should be an endorsement in the general diary (G.D.) with regard to movement of the police on the call of informant and carrying them to hospital. There is no such entry in the G.D. to show the movement of the police on the call of informant and took them to the hospital for medical treatment.
36. It is also very astonishing that there is no documentary evidence on the record to prove that victim had been medically examined on the instructions of the police. No letter for medical examination of victim (majruvi chithhi) had been issued by the police. In the light of the aforesaid facts, case of prosecution regarding the telephonic information to the relative of informant namely Sunil and thereafter to the police, who allegedly took them to hospital, is under cloud and no credence could be given to it.
37. It is pertinent to point out that medical report indicates that the victim had been brought by Bhanu Yadav (i.e. husband of victim/informant). Aforesaid endorsement in the medical report contradicts the prosecution case that PW-1 and his victim wife (PW-2) were brought to the hospital by the police. Dr. Lalit (PW-3) has clearly stated that there was no letter (majruvi chithhi) issued by the police for medical examination of the victim. He has further deposed that in absence of any letter from the police for examination of injuries, there is a requirement of permission from the concerned Chief Medical Officer (hereinafter referred to as "C.M.O.") but there is nothing on the record to show that the prosecution had obtained permission from the concerned C.M.O. either prior to, or after, the medical examination.
38. Perusal of the record revealed that original Medical Report was missing from the medical register, which was allocated for the same purpose. PW-3, Dr. Lalit clearly stated that original Medical Report was the victim is not available on the record and only the photostat copy of that report was available, which had not been copied by him. He had further deposed that he does not know the person concerned, who has attested the photocopy of the medical report. Perusal of record revealed that photocopy of the medical report, which had been said to be prepared and signed by Dr. Lalit (PW-3) on 12.04.2012, is marked as Exhibit Ka 2. On the rear side of the certificate there is seal of a Medical Officer and just above the seal there is an initial of someone with an endorsement "attested". Original copy of Supplementary Medical Report dated 14.04.2012 is available on the record. It is pertinent to point out that in fourth line of front page, where the date of medical examination is mentioned; a tampering appears to have been made over the month of report which has been tried to be made '4' by running the pen repeatedly in the same direction for making it '4'. PW-3, Dr. Lalit had admitted the medical examination of victim but refused attestation of photostat copy of the medical report.
39. Even assuming the correctness of the medical report, we are not in a position to convince ourselves, after appreciation of the medical report and the deposition of Dr. Lalit (PW-3) that the wounds inflicted to the victim are attributable to single gun shot, as hammered by the prosecution. Inflicted wounds could be examined under two perspectives i.e. nature of wound and use of firearm. In the medical report, all the injuries are shown to be superficial and simple in nature. After X-Ray report, nothing had been found in the wound except an observation-"Shadows of metallic density". In the Supplementary Medical Report, Dr. Lalit (PW-3) opined as under :-
"Opinion: Hence injury no.(1), (2), (3) which were KUO are simple in nature."
40. In the first Medical Report, only shape and size of wound have been mentioned, but depth of the wound has not been mentioned. There is no retrieval of pellets or bullets from the wound. Dr. Lalit (PW-3) deposed that injury no.(1) could be caused because of use of different types of firearms. Aforesaid deposition of Dr. Lalit had not corroborated the prosecution case with respect to the single shot fired by accused. It has not been made clear, anywhere, as to which type of firearm had been used by the accused in commission of the crime. Dr. Lalit had categorically stated that collar of abrasion, as mentioned in first injury, could be emerged, in case, fire is shot from a distance of 1 and 1 ½ feet and it would not emerge when fire was shot from the distance of 8-10 feet. In his cross-examination, PW-1 has deposed that while accused Chhattrapal challenged PW-1, he was standing 15 steps away from him towards south side and therefrom he shot fire at him which inflicted wounds to his wife (PW-2). As per rough calculation one step could be counted as two feet, therefore, 15 steps would be reckoned about 30 feets. In this view of the matter, depositions of Pws-1, 2 and 4 are contradictory qua cause of injury. A.F.R. Reserved on 18.02.2020 Delivered on 22.10.2020 Court No.34 Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 4 of 2019 Applicant :- Bhanu Pratap Singh Yadav Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Ram Prakash Patel Counsel for Opposite Party :- G.A. Hon'ble Mrs. Sunita Agarwal, J.
Hon'ble Dinesh Pathak, J.
(Per Hon'ble Dinesh Pathak, J.)
1. Heard Shri Ram Prakash Patel, learned counsel appearing for the appellant on admission.
2. The instant appeal under Section 372 Cr.P.C. has been preferred by the informant/appellant challenging the judgment and order dated 25.09.2018 passed by the Additional Sessions Judge/Fast Track Court (Offences against Women), Rampur in Sessions Trial No.306 of 2012, acquitting the accused persons namely, Chhattrapal (respondent no.2) and Rakesh (respondent no.3) for commission of the alleged offence under Section 307 IPC, arising out of Case Crime No. 1141 of 2012, Police Station-Civil Lines, District-Rampur.
3. As per the version of the First Information Report (hereinafter referred to as "FIR"), on 12.04.2012 at 4:00 P.M., the informant-Bhanu Pratap Singh Yadav (PW-1) along with his wife Vimla Devi (PW-2) went to Guddu's house at Punjab Nagar, Rampur to know the well being of his mother and son. He left his wife there and went away Vijaeeya to attend reception of the daughter of Operator Bulakhi Ram and to collect the installment from Kamal Singh. Therefrom, he came back to Punjab Nagar, took his wife and gave receipt to Vijay at Wajinagar. Thereafter, his wife asked him to go via his village so that they could meet his mother and to know her well being. At about 7:30 PM, while they were coming comfortably towards the village, he saw two persons standing on the road adjacent to the agricultural plot of Kewal and recognized them as Chhattrapal son of Swaraj and Rakesh son of Chandrapal in the light of his motorcycle's headlight. Two more unknown persons were also standing there at some distance. Chhattrapal shot fire at the informant, due to which his motorcycle tottered down towards the right side in the agricultural plot of Kewal, but the fired bullet hit on the temple region of his wife. In retaliation, the informant, after balancing himself, fired three shots from his service revolver. Thereafter, the accused persons opened indiscriminate firing and fled away towards the forest. The informant saw his wife lying down on the road in unconscious condition. He rang to his family members. Sunil son of Pappu immediately rushed to him and asked as to who had shot fire, then the informant took the name of the aforesaid two accused persons. Sunil told him that he saw Chhattrapal and Rakesh on the culvert while they were running towards forest. On his information to the police by phone, police force reached there and took him and his wife to the hospital through police vehicle and got her admitted. The police left the informant to look after her.
4. On the written report dated 12.04.2012 (Exhibit Ka-1) submitted by Bhanu Pratap Singh Yadav (PW-1), FIR dated 12.04.2012 (Exhibit Ka-7) has been lodged at about 23:40 hours registered as Case Crime No. 1141 of 2012 under Section 307 IPC, Police Station Civil Lines, District Rampur against Chhattrapal (respondent no. 2), Rakesh (respondent no. 3) and also against two unknown persons.
5. On 12.04.2012, the victim (w/o informant) was medically examined at about 8:30 p.m. in the District Hospital, Rampur by Dr. Lalit (PW-3), Medical Officer (EMG), District Hospital, Rampur who had prepared and signed the medical report dated 12.04.2012 (Exhibit Ka-2) showing three injuries on the body of the victim. Dr. Lalit had also submitted supplementary medical report dated 14.04.2012 (Exhibit Ka-3), after considering the X-ray report of the victim. First medical report dated 12.04.2012 and the supplementary medical report dated 14.04.2012 are as follows :-
First Medical Report dated 12.04.2012 :-
(1) Multiple firearm wound of entry of size ranging from 0.4 cm x 0.4 cm to 0.3 cm x 0.3 cm x depth not probed on right side of fact and right side back of head in an area of 13 cm x 4 cm collor of abrasions present oozinal of blood present. KUO advised X-rays.
(2) Fire wounds of entry (two in number) of size 0.3 cm x 0.3 cm x depth not probed on dorsal aspect of right forearm and right hand 07 cm aparts of each other KUO oozinal of blood present.
(3) Abraded contusion 3 cm x 2 cm on top of right shoulder Opinion Injury No.(1) and (2) are KUO Advised X-ray of skull AP/Lat fal. Injury No.(1) for Injury No.(2) advised X-ray of Right forearm c Rt. Head AP/Lat injury no.(3) KUO Advised X-ray of Rt. Shoulder AP/Lat. Injury no.(1) and (2) caused by firearm and Injury no.(3) is caused by hard and blunt object. Duration about fresh Sd. (Dr. Lalit) Attested Sd. Ashish Medical Officer (EMO) Dist. Hospital.
Supplementary Medical Report dated 14.04.2012 :-
Supplementary Report of Vimla Devi aged about 35 years/F, wife of Bhanu Yadav R/o Sai Vihar Colony Jawala Nagar P/S Civil Line, Rampur who was examined by me on dated 12.04.2012 at 8:30 PM in D.H.R. Injury no.(1), (2) and (3) were KUO Advised X-Rays Skull, Right forearm Right hand and Right shoulder.
X-Ray Report no.453 dated 13.04.2012 by Radiologist D.H. Rampur shows that X-Ray Skull-Six Small Radio-opeque X-Ray Rt. Forearm c Rt. Hand-Two Shadows of metallic density seen X-Ray Rt. Shoulder-NAD Opinion: Hence injury no.(1), (2), (3) which were KUO are simple in nature."
6. After investigation, the Investigating Officer (hereinafter referred to as "I.O.") has submitted the charge-sheet dated 10.05.2012 (Exhibit Ka-5) against Chhattrapal and Rakesh under Section 307 IPC. On the said charge-sheet, learned Magistrate took cognizance vide order dated 11.07.2012 and committed to the Sessions Court for trial.
7. Vide order dated 10.04.2013, the learned Court has framed charges against both the accused persons under Section 307 IPC.
8. As to hold guilty, the prosecution has produced as many as five witnesses.
9. PW-1, Bhanu Pratap Singh Yadav (Informant), had stated that he was residing in Sai Vihar since last 13-14 years and his other family members were residing in the village Raipur. On 12.04.2012 at about 4:00 P.M., he and his wife went to the residence of Guddan at Punjab Nagar. While returning along with his wife by motorcycle, at about 7:30 P.M., he reached near the agricultural plot of Kewal and saw Chhattrapal and Rakesh standing on the road to whom he recognized in the light of his motorcycle's headlight. Besides them, two more unknown persons were also standing there. Chhattrapal shot fire at him and his wife with an intention to kill them due to political antipathy. The fired bullet hit on the temple region of his wife. Thereafter, the informant had opened fire and discharged three shots from his service revolver. Thereafter, the accused persons fled away by opening indiscriminate firing. He saw his wife lying on the road in unconscious condition. Sunil and other persons reached on the spot after receiving a telephone call from the informant. Sunil told him that on the same day he saw Chhattrapal and Rakesh running away through a culvert. On his information, police personnel reached there, took the informant and his wife to the District Hospital. He had proved the written report as Exhibit Ka-1.
10. PW-2, Vimla Devi, wife of Informant, had supported the version of FIR. She had deposed that on being hit by firearm, she and her husband fell down on the ground. The accused persons ran away towards the village and her husband had followed them with his service revolver. She further stated that due to election antipathy, the accused persons were intending to kill them, but she alone had sustained gun shot injury. She had also stated that after 05-06 months, it came to their knowledge that Satyapal and Pappu @ Jai Singh were also involved in the incident. They challenged her husband that he could not do anything.
11. PW-3, Dr. Lalit had accepted that the medical examination of victim, Vimla Devi was conducted by him and proved her medical report dated 12.04.2012, prepared and signed by him, as Exhibit Ka-2 and also proved the supplementary medical report dated 14.04.2012, as Exhibit Ka-3, which was also prepared and signed by him after perusing the X-Ray report dated 13.04.2012. It is stated by Dr. Lalit (PW-3) that there was no letter written by police for medical examination of victim. Even after completion of medical examination, no permission of Chief Medical Officer (hereinafter referred to as "C.M.O.") had been obtained and submitted by injured.
12. PW-4, Ram Khiladi Solanki (Retired Inspector) is the Investigating Officer of the case and had proved the Site Map dated 13.04.2012 as Exhibit Ka-4 and the Charge Sheet dated 10.05.2012 as Exhibit Ka-5.
13. PW-5, Narendra Kumar Sharma (Constable No.258) had proved that he had prepared the original Chik FIR and endorsed in General Diary No.64. He had proved the General Diary as Exhibit Ka-6. He had also proved the Chik FIR as Exhibit Ka-7.
14. In reply to questions put to them, while recording their statements under Section 313 Cr.P.C. by Court below, accused persons had denied their involvement in the incident in question, pleaded their innocence and claimed for trial on merits.
15. After considering the facts and circumstances of the case and the evidence available on record, learned Trial Court, vide impugned judgment and order dated 25.09.2018 has acquitted both accused persons from the charge under Section 307 IPC, which is under challenge in the instant criminal appeal.
16. Learned counsel for appellant had submitted that the Court below had passed the order without considering the material evidence available on record. Bhanu Pratap Singh (PW-1) is the ocular witness of the crime in which his wife Vimla Devi (victim/PW-2) had sustained gun shot injury but the learned trial Court had illegally disbelieved the statement of PW-1 and ignored the injuries sustained by the victim. It is also submitted that accused persons had criminal intention to kill the informant due to political rivalry, inasmuch as, both the parties had antipathy due to election of Pradhan. He has also emphasized the medical report showing several injuries on the body of victim from where blood was oozing out, which had been caused due to firearm. Learned Court below had passed the impugned judgment and order in a cursory manner, without applying judicial mind, only on the basis of conjectures and surmises. Witnesses adduced on behalf of appellant have fully corroborated prosecution case whereas defence failed to produce any credible evidence in their support. Learned counsel for the appellant has submitted that the Court below had misread and misinterpreted the evidence available on record and illegally acquitted the accused on technical ground, which is not sustainable in the eyes of law.
17. We have carefully considered the submissions advanced by the learned counsel for the appellant, perused the impugned judgment passed by the Trial Court and the Lower Court's record, which was summoned in pursuance of the order dated 04.01.2019 passed by this Court.
18. The present appellant/informant (PW-1) has made opposite party nos. 2 and 3 as accused of attempt to murder with an allegation that they had intentionally shot fire at him, but unfortunately his wife (PW-2) had sustained gun shot injuries. The aforesaid incident allegedly took place on 12.04.2012 at about 7:30 p.m., while he was returning back along with his wife from Punjab Nagar to his village. Just after three kilometers from Punjab Nagar, he saw two persons standing on the road, whom he recognized in light of his motorcycle's head light, as present respondents no. 2 and 3. At the time of incident, it was quite dark and the road was desolate. Chhattrapal (accused) had shot single fire inflicting injuries to the wife of the appellant/informant. In retaliation, the appellant had also opened three fires but by that time the accused fled away by making indiscriminate firing. Thereafter, he saw that his wife was injured and lying on the road. On his telephonic information one Sunil and other persons reached there. Sunil had informed that he saw Chhattrapal and Rakesh while they were running through culvert. On his telephonic information about the incident the police personnel reached on the place of occurrence and took them to the hospital by official jeep. After getting his wife admitted in the hospital, he went to the police station to lodge FIR.
19. During trial, the appellant/informant had moved an application dated 27.05.2014 being Paper No. 40-Ka under Section 319 Cr.P.C. to summon Satyapal and Pappu @ Jai Singh alleging therein that these two persons were also present on the spot but could not be named in the FIR. The learned Trial Court had rejected the application vide order dated 20.04.2015.
20. The learned Trial Court has raised doubt qua facts and circumstances of the present case wherein the appellant/informant and his wife had been attempted to be killed by the accused/ respondents no. 2 and 3. The learned Trial Court has pointed out several discrepancies and contradictions in the statement of prosecution witnesses and the circumstantial evidence and found it appropriate to acquit both the accused persons.
21. The version of FIR could be discussed in two perspectives. First, occurrence of crime under which fire was shot by the accused persons inflicting the injuries to PW-2 (i.e. wife of informant). Second, information of the crime under which informant, PW-1 had telephonically informed his family members and the police, who took them to the hospital.
22. So far as the first part of FIR, regarding the occurrence of crime, is concerned, there are several discrepancies and contradictions in the statements of witnesses of fact, namely, PWs-1 and 2 respectively, which creates doubt with respect to the facts and circumstances of the case in which alleged crime said to have been occurred. No recovery of firearm is shown which was allegedly used by accused persons in the crime scene. That apart, service revolver of PW-1 and three empty cartridges, as stated by PW-1, has also not been recovered by the police. The non-recovery of gun or pistol or country made pistol, which is not made clear in the FIR, and used cartridges from the said firearm, creates doubt with respect to happening of the occurrence. I.O. (PW-4) had categorically stated that he had not found any empty cartridge on the spot, neither he recovered any used cartridge from the barrel of licensee revolver. He had also denied the presence of blood stain on the place of occurrence.
23. As per prosecution case, informant was going by motorcycle from Punjab Nagar to his village and road was running from west to east. Incident took place after three kilometers beside the agricultural field of Kewal, which is situated on the southern side. PW-1, in his cross-examination, has stated that the accused persons were standing fifteen steps away towards the south side from the place where he received bullet injury. Such event of bullet injury received by the appellant has neither been mentioned in the FIR nor deposed by him in his examination-in-chief. Even there is no medical report available on the record to corroborate his statement in this respect. In his cross-examination, PW-1 has stated that while he had been challenged by the accused persons, his motorcycle was tottered and he fell down along with his motorcycle towards southern side in the agriculture field of Kewal but his wife remained standing on the road just four steps away from the agriculture field of Kewal. While he fell down, the accused Chhattrapal shot one fire on the appellant/informant whereas, in the FIR and in the examination-in-chief, it has been mentioned that he and his wife were coming by motorcycle, Chhattrapal shot fire at him which inflicted injury to his wife who fell down on the road and he saw his wife injured lying on the road.
24. Timing of inflicting injuries to the victim is different as mentioned in the FIR, examination-in-chief and the cross-examination of PW-1. In examination-in-chief, PW-1 stated that his wife sustained gun shot injury on the way while she was sitting on the motorcycle and coming to the village, but in cross-examination he stated that his wife had sustained gun shot injury when she was standing on the road. PW-1 deposed that while he received bullet injury, the accused persons were standing fifteen steps away towards south whereas later on, he had deposed he was not injured rather his wife had sustained injury.
25. As per deposition made by PW-1, his wife was unconscious due to bullet injury and had been taken by the police to the hospital where she regained consciousness at about 2:30 A.M., whereas, on the other hand, the I. O. has stated that he could not find any evidence that the injured victim (PW-2) had been carried by the police jeep to the hospital for medical examination. That apart, sequence of events as narrated by PW-2, i.e. after sustaining gun shot injury until her admission in the District Hospital, indicates that she was fully conscious even after sustaining injury and she had observed all activities from the beginning of the incident until her discharge from the hospital. There is nothing on record to prove that at the time of medical examination i.e. 8:30 P.M., victim was brought to the hospital in unconscious condition. No such endorsement, regarding her unconscious state, is depicted in the medical report.
26. Deposition made by PW-2 is also full of contradiction and hard to believe. In her cross-examination, she had stated that she was in her house at Sai Vihar, Rampur, till 4:00 P.M., and thereafter, she had reached house of Guddu in dark atmosphere. On the contrary, PW-1 had stated that it was not dark, while he started from the house of Guddu, about 7:00 P.M., with his wife to his village-Raipur. According to PW-2, from the house of Guddu, she along with her husband departed to her house at Sai Vihar, Rampur, whereas, PW-1 has stated that they were going to their village-Raipur. Therefore, according to PW-2 they were not going to Raipur.
27. As per deposition made by PW-2 agriculture field of Kewal was situated hardly about ½ km from the house of Guddu, whereas, during his examination-in-chief at page-5, PW-1 had deposed that place of incident is situated near agriculture field of Kewal, was about 3 km far away from the house of Guddu. There is an absolute difference between ½ km and 3 km, which creates doubt with respect to the place of occurrence. As per deposition of PW-2, road was unpaved and there was darkness on the desolated road and the motorcycle was being driven towards east side of the road. In the Site Map (i.e. Exhibit Ka 4) road coming from Punjab Nagar to Raipur is shown running from west to east. Towards south, adjacent to the road, agriculture field of Kewal has been shown to be situated, where the incident took place. As per deposition of PW-1, while he was coming back on the motorcycle, his wife (PW-2) was sitting on the back seat with joint knees facing towards north. According to Site Map (Exhibit Ka 4) and as per version of prosecution, accused persons were standing on the south side and therefrom they shot fire, meaning thereby, accused persons were standing towards right side of the running motorcycle (i.e. west-east) and face of victim was towards left side of running motorcycle. On the contrary, PW-2 has deposed at page-6 that she was sitting on the motorcycle with her joint knees towards right side and her husband was driving the bike facing east side. Therefore, as per her statement, she was facing right side (towards south) and the motorcycle was running from west to east. Therefore, according to her statement, accused persons were standing towards left side of the motorcycle and on instigation of Rakesh, Chhattrapal had shot fire from left side. On single fire, she sustained injury on her head, thereafter, accused persons fled away towards the village by opening indiscriminate firing. According to her deposition, she fell down on the right side of the motorcycle immediately after sustaining bullet injury and was little bit conscious. Learned trial court has observed that though PW-1 is a lady, who belongs to rural area, but she was well acquainted about all the four directions.
28. PW-2 has deposed that her husband went towards east chasing the accused persons, whereas as per prosecution case as well as the Site Map (Exhibit Ka 4), accused persons fled away towards south direction. PW-2 has stated that on the spot where she fell down, blood oozed out from her wound. On the contrary, PW-4 I.O. has deposed in his cross-examination that he did not find any blood stains on the spot. As per statement of PW-2, one pellet injury was inflicted on her back side below the waist, but in the injury report, no injury has been shown on that part of her body. Later on, she stated that she sustained said injury because of falling down on the earth. At page-'8', she has deposed that she had nowhere stated that after chasing the accused persons, her husband returned back after 10-15 minutes and till he returned the motorcycle was lying there, beside her. She stated that her husband did not sustain any injury even after falling down from the motorcycle. But, later on she deposed that her husband had made balance, of motorcycle, with his legs, therefore, the motorcycle had not fallen down rather, she alone fell down from the motorcycle.
29. As per prosecution, while PW-2 sustained injury on her temple region, the motorcycle fell down towards right side in the agriculture field of Kewal. As per statement of PW-1, he and his motorcycle fell down in the agriculture field of Kewal and his wife remained standing on the road. Therefore, there is major contradiction with respect to the physical position of PW-1 and PW-2 on the spot. Even position of the motorcycle is also doubtful in the light of statements made by PW-1 and PW-2. PW-1 deposed that after sustaining bullet injury, his wife became unconscious and remained in that condition till 2:30 A.M. in the night, whereas, statement of PW-2 shows that she was conscious. At page-'3', she stated that she was lying on the road for 15-20 minutes, thereafter, his Jethh (brother-in-law) came on the spot and after half an hour, police reached on the spot and took her along with her husband to the Rampur Hospital. From there, they reached hospital within 15 minutes and doctor had examined her injuries and she was admitted there. However, she was not sure about the time by which she reached the hospital.
30. Surrounding circumstances as deposed by PW-2 and the statement/reply of accused under Section 313 Cr.P.C. reveal that political rivalry existed between both the parties. Victim (PW-2) and wife of Satyapal (brother of Chhatrapal/accused) had contested the election of Pradhan and wife of Satyapal had won the election, since then PW-1 informant bears enmity. In this backdrop of fact, it seems improbable that Chhatrapal committed the crime out of enmity, whereas his sister-in-law had won the election of Pradhan. On the other side, informant could have chance to bear the political antipathy and had got the motive to falsely implicate the accused persons in criminal case, inasmuch as, his wife (PW-2) was defeated in the said election.
31. Though the minor discrepancies or contradictions are not of much relevance in examining the facts and circumstances responsible for the commission of the crime, inasmuch as, with the passage of time when witnesses are called in the witness box, they may have some problem, for many reasons, in recollecting the exact happening which took place on the date of occurrence. In this respect, Hon'ble Supreme Court in Bharwada Ghoginbhai Hirjibhai v. State of Gujrat, AIR 1983 SC 753, has expounded the law showing several conditions wherein minor discrepancies could be occurred and same should be ignored. The relevant portion of paragraph 5 and paragraph 6 are being quoted below :
"5. ..............................Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
32. In the present matter, as discussed above, glaring contradictions and discrepancies have been found and such discrepancies affected the genesis of the crime. All discrepancies, totters basic version of the witnesses, which affects the accusation made by prosecution and the occurrence of crime.
33. So far as second perspective qua information of the crime is concerned, we are not satisfied with its correctness in the light of chronology of events as portrayed by the prosecution. It is mentioned in the FIR that when informant rang his family members by his mobile phone, one Sunil immediately rushed to the place of occurrence, but unfortunately Sunil, who is informant's relative, had not been brought in the witness box to corroborate the prosecution case. Sunil appears to be an important witness to authenticate the presence of PWs-1 and 2 at the place of occurrence, injury of PW-2 and the presence of the police, who reached on the spot after him.
34. Perusal of FIR evinces that in presence of Sunil, informant dialled his mobile phone to call the police for help who, in turn, reached on the spot and took them to the hospital for medical examination. Statement of I.O. (PW-4) does not corroborate the prosecution case with respect to arrival of the police on the informant's call and taking the victim and her husband (informant) to the hospital. Factum of arrival of the police on the spot and phone call of PW-1 has been denied by the I.O. (PW-4), who has stated in his cross-examination that there is no evidence on the record to prove that victim had been carried to the hospital by the police jeep. The relevant portion of statement of PW-4 is being quoted below :-
"विवेचना के दौरान ऐसा कोई साक्ष्य मुझे नहीं मिला कि घटनास्थल से चुटैल विमला देवी को उठाकर थाने की पुलिस जीप में डालकर डाक्टरी मुआयने के लिए पुलिस ले गयी हो।"
35. In case, the incident was informed by the informant to the police, who reached on the spot at informant's phone call, there should be an endorsement in the general diary (G.D.) with regard to movement of the police on the call of informant and carrying them to hospital. There is no such entry in the G.D. to show the movement of the police on the call of informant and took them to the hospital for medical treatment.
36. It is also very astonishing that there is no documentary evidence on the record to prove that victim had been medically examined on the instructions of the police. No letter for medical examination of victim (majruvi chithhi) had been issued by the police. In the light of the aforesaid facts, case of prosecution regarding the telephonic information to the relative of informant namely Sunil and thereafter to the police, who allegedly took them to hospital, is under cloud and no credence could be given to it.
37. It is pertinent to point out that medical report indicates that the victim had been brought by Bhanu Yadav (i.e. husband of victim/informant). Aforesaid endorsement in the medical report contradicts the prosecution case that PW-1 and his victim wife (PW-2) were brought to the hospital by the police. Dr. Lalit (PW-3) has clearly stated that there was no letter (majruvi chithhi) issued by the police for medical examination of the victim. He has further deposed that in absence of any letter from the police for examination of injuries, there is a requirement of permission from the concerned Chief Medical Officer (hereinafter referred to as "C.M.O.") but there is nothing on the record to show that the prosecution had obtained permission from the concerned C.M.O. either prior to, or after, the medical examination.
38. Perusal of the record revealed that original Medical Report was missing from the medical register, which was allocated for the same purpose. PW-3, Dr. Lalit clearly stated that original Medical Report was the victim is not available on the record and only the photostat copy of that report was available, which had not been copied by him. He had further deposed that he does not know the person concerned, who has attested the photocopy of the medical report. Perusal of record revealed that photocopy of the medical report, which had been said to be prepared and signed by Dr. Lalit (PW-3) on 12.04.2012, is marked as Exhibit Ka 2. On the rear side of the certificate there is seal of a Medical Officer and just above the seal there is an initial of someone with an endorsement "attested". Original copy of Supplementary Medical Report dated 14.04.2012 is available on the record. It is pertinent to point out that in fourth line of front page, where the date of medical examination is mentioned; a tampering appears to have been made over the month of report which has been tried to be made '4' by running the pen repeatedly in the same direction for making it '4'. PW-3, Dr. Lalit had admitted the medical examination of victim but refused attestation of photostat copy of the medical report.
39. Even assuming the correctness of the medical report, we are not in a position to convince ourselves, after appreciation of the medical report and the deposition of Dr. Lalit (PW-3) that the wounds inflicted to the victim are attributable to single gun shot, as hammered by the prosecution. Inflicted wounds could be examined under two perspectives i.e. nature of wound and use of firearm. In the medical report, all the injuries are shown to be superficial and simple in nature. After X-Ray report, nothing had been found in the wound except an observation-"Shadows of metallic density". In the Supplementary Medical Report, Dr. Lalit (PW-3) opined as under :-
"Opinion: Hence injury no.(1), (2), (3) which were KUO are simple in nature."
40. In the first Medical Report, only shape and size of wound have been mentioned, but depth of the wound has not been mentioned. There is no retrieval of pellets or bullets from the wound. Dr. Lalit (PW-3) deposed that injury no.(1) could be caused because of use of different types of firearms. Aforesaid deposition of Dr. Lalit had not corroborated the prosecution case with respect to the single shot fired by accused. It has not been made clear, anywhere, as to which type of firearm had been used by the accused in commission of the crime. Dr. Lalit had categorically stated that collar of abrasion, as mentioned in first injury, could be emerged, in case, fire is shot from a distance of 1 and 1 ½ feet and it would not emerge when fire was shot from the distance of 8-10 feet. In his cross-examination, PW-1 has deposed that while accused Chhattrapal challenged PW-1, he was standing 15 steps away from him towards south side and therefrom he shot fire at him which inflicted wounds to his wife (PW-2). As per rough calculation one step could be counted as two feet, therefore, 15 steps would be reckoned about 30 feets. In this view of the matter, depositions of Pws-1, 2 and 4 are contradictory qua cause of injury.
41. In the facts and circumstances of the present case, statutory element of Section 307 IPC are not attracted. "Intention" or "knowledge" are two alternative statutory elements to hold any person guilty for the commission of offence u/s 307 IPC. Therefore, one should have mens-rea intending to commit murder or should have possess knowledge that overt act, in all probability, would cause death of victim. Term "attempt" as embodied in the aforesaid sections could stem from the specific intention to commit murder and such blameworthy condition of mind could be gathered from the direct or circumstantial evidence, including the conduct of accused. Mere bodily injury capable of causing death or not, are not sufficient to hold any person guilty for committing crime under aforesaid sections.
42. After considering the medical report and circumstances in totality, it cannot be said that the accused have made attempt to murder as defined under Section 307 IPC. There are no such circumstances to suggest the intention of the accused persons for committing homicidal death of the informant or his wife.
43. Instant appeal is preferred against judgment of acquittal. While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Supreme Court that if two views on appreciation of the evidence are reasonably possible, one supporting the acquittal and other indicating conviction, the High Court should not, in such a situation, reverse the order of acquittal recorded by the Trial Court. In the matter of State of Karnataka vs. K. Gopalkrishna reported in (2005) 9 SCC 291, the Hon'ble Supreme Court, while dealing with an appeal against acquittal, observed as under:
"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evnidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal."
44. In Sudershan Kumar v. State of Himachal reported in (2014) 15 SCC 666, the Hon'ble Supreme Court observed thus:-
"31. It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State which is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 37, propositions laid down in an earlier case are taken note of as under:
"37. In Chandrappa v. State of Karnataka reported in (2005) 9 SCC 291, this Court held:
(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 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 disturb the finding of acquittal recorded by the trial court."
32. Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder:
"39. The following principles emerge from the cases above:
(1) The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
(2) The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
(3) The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
(4) The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
(5) If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."
45. In Dilawar Singh v State of Haryana, (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under:
"36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record."
46. After analyzing the facts and circumstances of the case and perusal of the record, we are of the considered view that Court below has rightly acquitted opposite party nos.2 and 3 for the commission of alleged crime under Section 307 IPC. If the evidence of prosecution is read and considered in totality of surrounding circumstances along with other evidences available on the record, in which the crime is alleged to have been commissioned, it cannot be said that accused persons had attempted to commit homicidal death of informant/appellant and his wife. Neither depositions of prosecution witnesses inspire confidence of the Court, nor it disclose the true genesis of the crime under Section 307 IPC. Prosecution has failed to prove its accusation beyond all reasonable doubts. In such a situation of fact, accused persons i.e. respondent nos.2 and 3 are entitled to get benefit of doubt and their innocence could easily be inferred. There is no substantial and compelling reasons to reverse the order of acquittal passed by the trial court. Learned counsel for the informant/appellant has failed to point out any illegality or perversity in the impugned judgment and order, which is under challenge in this appeal. Thus, we find no ground to interfere in the findings of fact recorded by Court below which has decided the matter in favour of respondents-accused persons.
47. In the result, this appeal is dismissed at the stage of admission itself. Consequently, the impugned judgment and order dated 25.09.2018 passed in Sessions Trial No.306 of 2012, is hereby affirmed and maintained.
48. Let a copy of this judgment along with lower Court's record be transmitted to the concerned Court below forthwith.
Order date : 22.10.2020 VR/Manish Himwan
41. In the facts and circumstances of the present case, statutory element of Section 307 IPC are not attracted. "Intention" or "knowledge" are two alternative statutory elements to hold any person guilty for the commission of offence u/s 307 IPC. Therefore, one should have mens-rea intending to commit murder or should have possess knowledge that overt act, in all probability, would cause death of victim. Term "attempt" as embodied in the aforesaid sections could stem from the specific intention to commit murder and such blameworthy condition of mind could be gathered from the direct or circumstantial evidence, including the conduct of accused. Mere bodily injury capable of causing death or not, are not sufficient to hold any person guilty for committing crime under aforesaid sections.
42. After considering the medical report and circumstances in totality, it cannot be said that the accused have made attempt to murder as defined under Section 307 IPC. There are no such circumstances to suggest the intention of the accused persons for committing homicidal death of the informant or his wife.
43. Instant appeal is preferred against judgment of acquittal. While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Supreme Court that if two views on appreciation of the evidence are reasonably possible, one supporting the acquittal and other indicating conviction, the High Court should not, in such a situation, reverse the order of acquittal recorded by the Trial Court. In the matter of State of Karnataka vs. K. Gopalkrishna reported in (2005) 9 SCC 291, the Hon'ble Supreme Court, while dealing with an appeal against acquittal, observed as under:
"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evnidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal."
44. In Sudershan Kumar v. State of Himachal reported in (2014) 15 SCC 666, the Hon'ble Supreme Court observed thus:-
"31. It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State which is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 37, propositions laid down in an earlier case are taken note of as under:
"37. In Chandrappa v. State of Karnataka reported in (2005) 9 SCC 291, this Court held:
(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 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 disturb the finding of acquittal recorded by the trial court."
32. Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder:
"39. The following principles emerge from the cases above:
(1) The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
(2) The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
(3) The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
(4) The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
(5) If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."
45. In Dilawar Singh v State of Haryana, (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under:
"36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record."
46. After analyzing the facts and circumstances of the case and perusal of the record, we are of the considered view that Court below has rightly acquitted opposite party nos.2 and 3 for the commission of alleged crime under Section 307 IPC. If the evidence of prosecution is read and considered in totality of surrounding circumstances along with other evidences available on the record, in which the crime is alleged to have been commissioned, it cannot be said that accused persons had attempted to commit homicidal death of informant/appellant and his wife. Neither depositions of prosecution witnesses inspire confidence of the Court, nor it disclose the true genesis of the crime under Section 307 IPC. Prosecution has failed to prove its accusation beyond all reasonable doubts. In such a situation of fact, accused persons i.e. respondent nos.2 and 3 are entitled to get benefit of doubt and their innocence could easily be inferred. There is no substantial and compelling reasons to reverse the order of acquittal passed by the trial court. Learned counsel for the informant/appellant has failed to point out any illegality or perversity in the impugned judgment and order, which is under challenge in this appeal. Thus, we find no ground to interfere in the findings of fact recorded by Court below which has decided the matter in favour of respondents-accused persons.
47. In the result, this appeal is dismissed at the stage of admission itself. Consequently, the impugned judgment and order dated 25.09.2018 passed in Sessions Trial No.306 of 2012, is hereby affirmed and maintained.
48. Let a copy of this judgment along with lower Court's record be transmitted to the concerned Court below forthwith.
Order date : 22.10.2020 VR/Manish Himwan