Allahabad High Court
State vs Hukam Singh And Others on 24 August, 2022
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Judgement Reserved On :13.04.2022 Delivered on : 24.08.2022 Case :- GOVERNMENT APPEAL No. - 1518 of 1982 Appellant :- State Respondent :- Hukam Singh And Others Counsel for Appellant :- A.G.A., Ashwani Kumar Srivastava,R.N. Sharma Counsel for Respondent :- R.P. Agarwal, B.L. Shukla Hon'ble Om Prakash-VII,J.
Hon'ble Narendra Kumar Johari,J.
(Per: Narendra Kumar Johari, J.)
1. Present Government Appeal has been filed by the State of U.P. - appellant against judgment and order dated 26.02.1982, passed by learned 2nd Additional Session Judge, Meerut in Session Trial No.72 of 1981 (State Vs. Ishwar and others), under Sections 147, 148, 302/149 & 342 IPC, Police Station Kharkhauda, District Meerut. By the impugned judgment and order, the trial court has convicted accused Ishwar Singh for the offence under Sections 302, 342 IPC but acquitted him for the charge of offence punishable under Sections 148, 149 of IPC. Apart from that, learned trial court has also acquitted accused persons Hukam Singh, Dal Chand, Kalu, Mukhtiar and Parmatma Sharan from the charge of offence punishable under Sections 302/149 and Section 342 IPC. Assailing the aforesaid judgment and order, the State Government preferred the present criminal appeal.
2. The facts involved in the present case are that on 28.12.1980 at about 8.00 A.M. father of informant Raj Mal was returning home after attending the nature's call, as he reached in front of the house of Ishwar Singh, accused Ishwar Singh, Hukam Singh, Dal Chand, Kalu, Parmatma Sharan and Mukhtyar, who were carrying lathis and spears (Ballam) in their hands, started abusing Raj Mal, when he opposed, all the accused persons attacked and started beating him. They had also penetrated spear in the abdomen of Raj Mal and carried him inside the house of Ishwar Singh where they locked him in a room. Informant and Hari Singh, Gopal, Rang Nath and many other persons of village hearing the noise reached on the spot and witnessed the occurrence. They requested the accused persons to release Raj Mal. Thereafter, the accused persons brought out Raj Mal in injured condition from the house. The informant Bal Kishan arranged to send his father to Hospital at Meerut for medical aid and he himself went Police Station to lodge the First Information Report. He produced the written Tehrir in Police Station concerned which was scribed by one Bhagwan Das Gautam.
3. On the basis of written Tehrir with above contention, the First Information Report was lodged in police station Kherkhounda against accused persons Ishwar Singh, Hukam Singh, Dal Chand, Kalu, Parmatma Sharan and Mukhtiar under Sections 147, 148, 149, 323, 308 and 342 of IPC vide Crime No.327/1980.
4. The investigation of the offence was entrusted to Sub Inspector Rajbir Singh, who, after completion of the investigation submitted charge sheet against all the accused persons. It is to be noted that as the injured Raj Mal reached to the hospital at Meerut on the same day, he succumbed due to the injuries sustained in the occurrence, therefore, the case was amended into Sections 147, 148, 149, 342, 302 IPC.
5. After submission of the charge sheet, learned Magistrate concerned, took cognizance of offence and committed the case to the Court of Sessions, where the charges under Sections 147, 148, 302/149, 342 IPC were framed against the accused persons, who denied and abjured the charges, pleaded not guilty and requested for trial.
6. On behalf of the prosecution, informant Bal Kishan as PW 1, Raghunath Singh as PW 2, Mahesh Prakash as PW 3, Dr. S.K. Jindal as PW 5, Constable Rishipal as PW 6, Bhagwan Das Gautam as PW 7, S.I. Rajbir Singh as PW 8, and S.I. K.P. Singh as PW 9 had given their oral evidence. Constable Jagdish Singh had also submitted his affidavit in support of prosecution case as PW 4. The witnesses PW 1, PW 2, PW 3, PW 7 were the witnesses of fact. Rest other witnesses deposed as formal witnesses.
7. Witness PW 1 Bal Kishan, in his oral evidence had reiterated almost the same facts as was mentioned in the First Information Report. Witnesses PW 2 and PW 3 in their evidence had stated that they were eye witness of the occurrence, PW 7 deposed as scribe of the written Tehrir for FIR. He also stated in his evidence that he had carried injured Raj Mal to hospital at Meerut.
8. After closure of the oral evidence of prosecution, statement of accused persons under Section 313 Cr.P.C. was recorded by the trial court in which the accused persons had denied the prosecution story as well as the facts narrated by the prosecution witnesses in the Court. They further mentioned that they had been implicated in the case falsely due to the enmity. In support of their defence, accused persons produced Dr. O.P. Chopra as DW 1 and H.C.P. Ram Swaroop Sharma as DW 2.
9. Learned trial court, after hearing the arguments of both the sides and after considering the case on merit, concluded that although prosecution has succeeded in bringing home the charges of offence under Sections 302 and 342 IPC against accused Ishwar Singh but failed to prove the charges of offence against other accused persons, therefore, by providing the benefit of doubt, learned trial court acquitted them from the charges of offence. Aggrieved with the said judgment and order dated 26.02.1982, the State of U.P. has preferred the present appeal.
10. Learned A.G.A. has submitted that witness PW 1 had seen the occurrence. The First Information Report of the occurrence was lodged with due promptness soon after the occurrence. Witnesses PW 2 and PW 3 were also the eye witnesses of occurrence. There is no major contradiction in the statement of witnesses. The facts mentioned in the F.I.R. as well as the statement of witnesses are supported by the medical evidence. All the above witnesses are natural and residents of the same village. It is a case of day light occurrence. The motive of occurrence had been proved. Admittedly, there was enmity between the deceased and accused persons. Learned trial court has failed to appreciate the prosecution evidence. There was no reason for false implication of the accused persons. The finding of the trial court regarding acquittal of accused-respondents Hukam Singh, Dal Chand, Kalu, Mukhtyar and Parmatma Sharan suffers from illegality and infirmity. Prosecution was succeeded to prove its case against all the accused persons, hence, the finding of the trial court regarding acquittal of the accused respondents deserves to be set aside, and are liable to be convicted for the offence charged. Accordingly, the appeal deserves to be allowed.
11. In reply, learned counsel for the accused-respondents submitted that the occurrence had not been witnessed by any eye witness. Witness PW 1, PW 2 and PW 3 were never the eye witness of occurrence. Witnesses PW 1, PW 2 and PW 3 were interested and enimical to the accused-respondents. The evidence of witnesses of fact having contradictions on substantial points are not trustworthy. The prosecution story is not supported with medical evidence. Accused-respondents were not having any motive/enmity with the informant. The finding of the learned trial court is based on proper appreciation of fact and evidence. There are serious laches of Investigating Officer which affects the prosecution case substantially. The findings of learned trial court regarding acquittal of accused-respondents are well discussed, just and proper. The grounds of appeal are not supported by law, which deserves to be dismissed.
12. We have heard the arguments of learned A.G.A. as well as learned counsel for the accused-respondents and perused the record.
13. Before proceeding to discuss the submissions of learned counsels for the parties, we would like to mention the points upon which learned trial court has based its judgment of acquittal, which are as under :-
(i) Witness PW 1 has not mentioned in the F.I.R. that which of the accuseds were carrying spear and which were lathies. In his oral examination, witness PW 1 has not stated that whose spear attack caused punctured wound to his father Raj Mal.
(ii) At the time of occurrence, tractors were available in the village but they have not been used to carry injured Raj Mal to hospital. Witnesses PW 2 and PW 3 were having enmity with accused-respondents, hence they are not independent witnesses.
(iii) Neither witness PW 1, nor any other family member had accompanied injured Raj Mal to hospital at Meerut.
(iv) Witness PW 1 is partly reliable whereas the testimony of PW 2, PW 3 are not believable.
(v) Investigating Officer had not collected any blood stained soil from the place of occurrence.
(vi) Prosecution was failed to prove its case against accused-respondents beyond reasonable doubt, hence, they are entitled to get the benefit of doubt and also the ingredients of common object have not been established.
14. After outlining the findings recorded by the trial court in the impugned judgment and order on material points, we have proceeded to deal with the case.
15. As according to the First Information Report, the occurrence took place at 8.00 A.M. on 28.12.1980, for which the First Information Report was lodged in the police station concerned at about 9.15 A.M. on the same day. The distance of police station from the place of occurrence has been shown as two and half miles, i.e. approximately 4 Kms. Witness PW 1 had stated in his oral evidence that on 28.12 1980 at 8.00 A.M. when he was enjoying 'Hukka' along with Hari Singh, Gopal and Shiv Dayal in his Osara (courtyard) at that time, he heard the voice of his father, who was returning from the jungle. He had seen that his father was being beaten by accused persons Ishwar Singh, Dal Chand by spear and Hukam Singh, Kalu, Mukhtyar, and Parmatma Saran with lathies. The place of occurrence was 20-25 paces away from his "Osara". After assaulting his father, the accused persons carried him in the house of Ishwar Singh and closed the door. When the informant and other persons who were present on spot, requested and raised hue and cry, the accused persons released Raj Mal from his house. At that time the injuries of Raj Mal were bleeding. At page no.7 of his statement, the witness PW 1 had stated that when accused persons brought his father from inside the house of Ishwar, condition of his father was not good, although he was speaking but his condition was appearing deteriorating. At page 9, he had stated that when the witness had seen Raj Mal for the first time after hearing the voice, he was surrounded by accused persons. He reached on the spot without any weapon in his hand and he requested the accused persons (to release his father). This behaviour of the witness PW 1 is unnatural, as he had seen that his father was being beaten by the accused persons with deadly weapon, even then neither he tried to procure any weapon in his hand nor gave any fighting talk to accused persons.
16. Witness PW 1 in his evidence had further stated that physical condition of his father was deteriorating, therefore, he moved for police station to lodge FIR. Simultaneously the injured was sent to hospital by bullock cart (Buggi). The witness has further admitted in his evidence that at that time tractors and trollies were available in the village but he did not request any tractor owner to carry his father to hospital at Meerut. In this context it is pertinent to mention that witness PW 2 who has been produced in the case as eye witness of occurrence, had stated in his evidence at page no.4 that he was also a tractor owner but the witness PW 1 did not ask him to carry his father to hospital by his tractor. This behaviour of PW 1 creates doubt regarding his presence at the place of occurrence.
17. Witness PW 1 had further stated at page 7 of his evidence that when accused persons brought out his father from the house of Ishwar Singh, the condition of his father was bad and was appearing deteriorating, also at page 4, he had stated that at that time the blood was oozing out from the injuries of his father but he did not try to carry his injured father in his lap, rather at page 12 the witness PW 1 had stated that from the place of occurrence he brought his father on foot, whereas the severity of his injury is proved by evidence of PW 5. This conduct of the witness PW 1 also creates doubt.
18. Witness PW 1 had stated that he reached hospital at about 2-2 1/2 P.M. but till then his father had died. He further stated at page 6 of his evidence that his father and Sant Ram alone had gone to hospital, none of the family members had accompanied them. It is to be noted that at page 7-8 of his evidence, the witness PW 1 had stated that after lodging FIR at Police Station "Darogaji" had accompanied him for the village and they reached at 11- 11.15 O'clock at his village via Tiraha. 'Darogaji' stayed for one and half hours in the village and thereafter returned back. Meaning thereby, the witness PW 1 had returned from police station with Investigating Officer. The I.O. as PW 8 had also stated in his evidence at page 2 that he departed from the police station for the place of occurrence by bus. Bus dropped him at Tiraha, where he found that injured Raj Mal and other persons of the village were waiting for bus to go hospital at Meerut, at that place he recorded the statement of injured Raj Mal under Section 161 Cr.P.C. This witness PW 8 further stated that at the time of recording the statement of injured Raj Mal, informant Bal Kishan was also present there. Witness PW 7 Bhagwan Das Gautam has stated in his statement that condition of Raj Mal was bad and deteriorating. In such a scenario, when the FIR had already been lodged at Police Station, and the witness PW 1 was present at Tiraha at the time of recording the statement of his father, physical condition of his father was deteriorating, there was no other family member with the injured Raj Mal, then why this witness PW 1 not accompanied his father for Meerut hospital, the witness PW 1 had not explained its reason. Therefore, so far as the evidence of witness PW 1 regarding his presence at the place of occurrence is concerned, comes under the shadow of doubt.
19. Witness PW 2 Raghunath Singh, S/o Balwant Singh and witness PW 3 Mahesh Prakash were not named in the F.I.R. which has been lodged soon after the occurrence. Witness PW 2 Raghunath Singh had stated in his statement that he reached at the place of occurrence after hearing the noise of abusement but who was abusing whom, he did not state. He had stated at page 6 of his statement that his brother Jai Prakash was murdered 2-3 years prior to the date of present occurrence. In that occurrence, father of accused Ishwar Singh was prosecuted in the court and in that case accused Ishwar was one of the defence witness and uncle of witness PW 2 was prosecution witness, therefore, enmity with accused Ishwar Singh and witness PW 2 is admitted and proved. Witness PW 2 had also stated in his evidence that at the time of occurrence, he reached on the place of occurrence but he neither accompanied informant PW 1 to police station for lodging the F.I.R., nor accompanied the injured Raj Mal for hospital. The conduct of this witness is unnatural. This witness had also stated in evidence that accused persons had started beating Raj Mal before he reached on the spot. Therefore, it appears that PW 2 was not the witness of ocurrence, when the quarrel started. He had further stated that none of the persons tried to stop the accused persons. The witness had also not tried to interfere when the accused persons were carrying Raj Mal inside the house of Ishwar Singh.
20. So far as the credibility of witness PW 3 is concerned, he admitted in his evidence that he had submitted his affidavit against accused persons in High Court to oppose their bail application. The witness PW 3 further stated that at the time of occurrence, he was going to Village Pipli Khera and on the way he saw the occurrence but he had neither gone to the police station with the informant to lodge the First Information Report, nor he had accompanied the injured Raj Mal when he was going hospital. The above conduct of PW 2 and PW 3 shows that they are not independent witnesses, rather they were having enmity with the accused persons, therefore, the learned trial court has rightly discarded the testimony of witness PW 2 and PW 3.
21. Learned trial court has further observed that in the F.I.R. six persons were named as accused for causing fatal injury to Raj Mal. As according to the Post Mortem Report of deceased which has been corroborated by the evidence of PW 5 it transpires that injured Raj Mal had received total 08 injuries. Out of them 01 injury was on his head and 05 injuries were on the left part of his body and 01 on right side. Injured Raj Mal in his statement under Section 161 Cr.P.C. had stated that accused persons who were carrying lathies and spear in their hands started abusing and beating him with exhortation. During course of the attack, accused Ishwar Singh pushed spear in his abdomen. Raj Mal further stated in his statement that after receiving the injuries as he was about to fell down, the accused persons caught him and carried him inside the house and locked him in a room and after the request of his son and other persons of village, they released him from the room. In his entire statement, the injured had not stated about any repeated attack by accused person. Taking into consideration the injuries on the body parts of victim, it appears that it may be possible that during the course of attack one accused might had given lathi blows on leg and hip region of victim from his left side, another accused gave lathi blow on his head and chest region from his right side and another one pushed spear in his abdomen which caused fatal punctured wound, therefore, it also appears that at least three persons might had been involved in the attack. It is to be noted that neither any witness, nor injured himself had stated that which of the accused had given lathi blow on which part of injured's body. Learned trial court, by placing reliance on statement of injured (by treating his dying declaration) has concluded that accused Ishwar Singh had given spear blow to Raj Mal which became fatal for him. Witness PW 1 has also named accused Ishwar Singh for the attack with spear.
22. It has to be considered that in his cross examination at page 13 witness PW 1 had stated that there was old enmity between Dal Chand and Ishwar Singh and Hukam Singh. Dal Chand had lodged an F.I.R. against them in 1972. Further, he had stated that accused Ishwar Singh also initiated a prosecution for the offence of robbery against Dal Chand, Kalu and Mukhtiyar in 1971. A dispute and quarrel had taken place between father of Parmatma Saran and Dal Chand and others, therefore, the fact of inter se dispute and enmity between accused persons comes on surface. PW 1 had also stated in his statement at page 15 of his evidence that there was no any previous enmity with other accused persons except Ishwar and Hukam Singh. The record shows that earlier a dispute regarding unauthorized possession of land was originated between Raj Mal and accused Ishwar. It had been alleged that Ishwar Singh had illegally occupied 04 Bighas of land of Raj Mal against which the proceeding for measurement was initiated by him in revenue court, which was decided in his favour. Subsequently in the year, 1980 accused Hukam Singh and other had attacked on injured Raj Mal for which he had lodged a complaint against them under Sections 323, 504, 506 IPC, which was pending in the court as on the date of occurrence. Therefore, an old enmity only between accused Ishwar Singh, Hukam Singh with Raj Mal is proved comes into light.
23. Learned trial court has placed reliance on statement of injured, which was recorded by Investigating Officer under Section 161 Cr.P.C. and treated the same his dying declaration. No where in his oral examination witness PW 1 had stated that either his father was unconscious nor he was unable to speak. At page 7, he had stated that although the physical condition of his father was bad, yet he was speaking. Witness PW 7, who was the scribe of the F.I.R. had also stated in his evidence that when the Investigating Officer was recording the statement of injured, he was able to speak. The same evidence had been given by the witness PW 8 Rajbeer Singh, the Investigating Officer. The above witnesses have been cross examined by defence in length but no otherwise fact on the above point came on surface. Therefore, nothing is on record which may create doubt regarding the veracity of statement of injured (Ext. Ka-7). According to the settled legal proposition in appropriate circumstance statement of injured can be treated as his dying declaration and if found trustworthy conviction can be based on such dying declaration. Apart from that, nothing is on record which may prove any reason or motive of present accused-respondent to attack on victim, nor there is any reliable evidence which may show their definite presence on the place of occurrence. Hence, it has rightly been concluded by learned trial court that the prosecution could not prove the fact that present accused-respondents were involved in committing the offence, hence the trial court acquitted accused-respondents by providing them benefit of doubt. Simultaneously, learned trial court by placing reliance on dying declaration of deceased Raj Mal and evidene of PW 1 had convicted accused Ishwar Singh for the charges of offence under Sections 302 and 342 IPC. There is no evidence is on record, which may prove the ingredients of offence defined under Sections 148 & 149 of IPC.
24. During the pendency of present appeal, accused-respondent Mukhtyar and Dal Chand have died, therefore, the appeal has been abated against both the accused-respondents. It also revealed from the record that accused Ishwar Singh who had been held guilty and was convicted by learned trial court for the offence punishable under Sections 302 and 342 IPC, had filed Criminal Appeal No.554/1982 against his order of conviction, which was also pending before this Court. Since, during the pendency of above criminal appeal accused appellant Ishwar Singh has died, therefore, his appeal also stood abated vide order dated 10.01.2017.
25. Considering the entire aspect of the matter, as discussed above, we are of the considered view that the prosecution was not able to prove its case against accused-respondents beyond reasonable doubt. The view taken by learned trial court is a possible view. The judgment and order passed by learned trial court, according to law is just and proper and the same is well discussed. No illegality, infirmity or perversity is found. The accused-respondents are found not guilty for the offence with which they were charged and tried, as such, the impugned judgment and order passed by learned trial court is liable to be upheld. The government appeal having no force is liable to be dismissed.
26. Accordingly, present government appeal is dismissed. The judgment and order dated 26.02.1982, passed by learned trial court is hereby affirmed.
27. Let the record be sent back to the trial court along with the copy of this judgment.
Order Date :- 24.08.2022 ML/-