Allahabad High Court
State Of U.P. vs Guddu And 2 Others on 4 September, 2024
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:144078-DB Court No. - 47 Case :- GOVERNMENT APPEAL No. - 475 of 2024 Appellant :- State of U.P. Respondent :- Guddu And 2 Others Counsel for Appellant :- G.A. Counsel for Respondent :- Santosh Kumar Yadav Hon'ble Rajiv Gupta, J.
Hon'ble Surendra Singh-I, J.
1. Heard Shri Jitendra Kumar Jaiswal, learned AGA for the State/appellant, Shri Santosh Kumar Yadav, learned counsel for the accused-respondents and perused the trial court record.
2. The instant government appeal has been filed by the State of U.P. alongwith an application for grant of leave to appeal against the judgment and order dated 12.05.2017 passed by Additional District and Sessions Judge, Fast Track Court, Kanpur Dehat in Sessions Trial No. 130 of 2012 (State of U.P. Vs. Guddu And 2 Others), arising out of Case Crime No. 540 of 2010, under Sections 304, 323, 504 IPC, Police Station Mangalpur, District Kanpur Dehat, by which, the accused-respondents have been acquitted of the offence under Sections 304, 323 IPC.
3. As per the prosecution case as unfurled in the first information report lodged at the instance of one Nanhe, first informant, wherein it is alleged that accused-respondents Guddu, Pintu and Awadhesh Kumar, who are the sons of his brother-in-law are jealous of him and they alongwith their associates Lakhan Lal Pandey and Surendra Pal and four other unknown persons, had taken away his son Dharmendra on 20.02.2010 on the pretext of getting him a good job.
4. It is further alleged that when he returned back, he tried to search him out, however, it was revealed that the accused persons have forcibly taken him away to some unknown place. The information in respect of which was given at the Police Station Mangalpur, however, no action was taken by the police.
5. It is further alleged that on 19.07.2010, accused-respondents had left his son Dharmendra in a mortal state in the village and informed the villagers that he is suffering from abscess on his chest, though, his son Dharmendra informed him that five nominated accused persons alongwith four other unknown persons had assaulted him with iron rod (Sariya) and they used to rob him of his money in Nainital and had illegally detained him there, in respect of which, relevant information was given in the Police Station, however, no report was lodged nor any medical examination was done, failing which, he in order to provide him medical treatment, had taken him to the Hospital at Jhinjhak on 20.07.2010 and got him admitted there, from where, he was referred to Hallet Hospital, Kanpur, however, on the advice of the Doctor, he was referred for S.G.P.G.I., Lucknow on 24.07.2010. The first informant after arranging the money, was taking him to S.G.P.G.I., Lucknow for treatment, however, on the way, he breathed his last. Thereafter, the first informant tried to lodge the report at the Police Station Mangalpur on 24.07.2010, however, his report was not registered, rather the police registered a case in the form of a death report and got the post-mortem conducted without registering a formal FIR.
6. Consequently, on the basis of an application under Section 156(3) CrPC, a first information report was registered at the Police Station Mangalpur, District Kanpur Dehat on 26.12.2010 at 16:00 Hours.
7. Perusal of the record shows that on the basis of death information report recorded by the police vide G.D. Report No. 43 at 21:30 Hours on 25.07.2010, the police reached the house of the deceased and conducted the inquest on his person on 25.07.2010 and after preparing the relevant documents, wrapped the corpse in a white cloth and handed it over to the Constable for taking it to the Mortuary for post-mortem examination and thereafter, an autopsy was conducted on the person of the deceased on 26.07.2010 at 3:15 PM by PW-6 Dr. Ramesh. The Doctor has noted that there are two injuries on his person and has pointed out that cause of death is shock due to septicaemia.
8. The Investigating Officer thereafter recorded the statement of the relevant witnesses and after concluding the investigation, submitted the charge-sheet against the accused-respondents on 28.05.2011 under Sections 304, 323, 506 IPC. On the basis of the said charge-sheet, learned Magistrate had taken cognizance of the offence against the accused-respondents, however, since the case was exclusively triable by the court of Sessions, it was committed to the court of Sessions for trial, where it was registered vide Sessions Trial No. 130 of 2012 (State of U.P. Vs. Guddu and 2 Others).
9. After committal of the case, learned trial court framed the charges against the accused-respondents under Sections 304, 323 IPC vide order dated 18.09.2012. The said charges were read out and explained to the accused-respondents, who abjured the charges, pleaded not guilty and claimed to be tried.
10. The prosecution in order to prove the guilt against the accused-respondents has examined the first informant Nanhe as PW-1, Smt. Chhoti, mother of the deceased as PW-2, PW-3 Kailash, PW-4 H.C.P. Ram Sajivan Sahu, PW-5 S.I. Satish Chandra Yadav, PW-6 Dr. Ramesh, PW-7 C.O. Banshraj Singh Yadav.
11. After recording the testimony of the prosecution witnesses, the statements of the accused-respondents under Section 313 CrPC were recorded, wherein they categorically stated that they have been falsely implicated and denied the charges framed against them. They further stated that they had not taken the deceased to Nainital for any job, however, on account of abscess in his stomach, he died, however, accused-respondents had not led any defence evidence, either oral or documentary.
12. After recording the entire testimony of the relevant witnesses and hearing the accused-respondents, the trial court acquitted all the accused-respondents of both the charges framed against them vide impugned judgment and order dated 12.05.2017.
13. Being aggrieved and dissatisfied by the said judgment and order, the instant government appeal has been preferred by the State of U.P. alongwith an application for grant of leave to appeal with the prayer to reverse the finding of acquittal recorded by the trial court in favour of the accused-respondents and to convict them for the offence charged with.
14. Learned AGA for the State/appellant has submitted that the trial court has not appreciated the evidence and material on record in right perspective and has illegally recorded the finding of acquittal in favour of the accused-respondents.
15. Learned AGA for the State/appellant has further submitted that finding of acquittal recorded by the trial court in favour of the accused-respondents is based on surmises and conjectures and is therefore liable to be set aside.
16. Per contra, learned counsel for the accused-respondents has submitted that the trial court, after appreciating the evidence and material on record in right perspective and considering each and every aspect of the matter and testimonies adduced by PW-1, PW-2 and PW-3, has rightly come to the conclusion that the prosecution has miserably failed to prove the charges against the accused-respondents and as such, has rightly acquitted the accused-respondents, which finding is just, proper and legal and do not call for any interference by this Court and by no stretch of imagination, the said finding can be said to be perverse or illegal and is a possible view and therefore, there is absolutely no ground to reverse the finding of acquittal recorded by the trial court in favour of the accused-respondents and convict them as prayed by learned AGA for the State/appellant.
17. Having considered the rival submissions made by learned counsel for the parties and upon going through the entire evidence adduced during the course of trial, it is evident that the deceased Dharmendra was allegedly taken away by the accused-respondents alongwith Lakhan Lal Pandey and Surendra Pal and four other unknown persons to Nainital, however, it is alleged that on 19.07.2010, accused-respondents left his son Dharmendra in a mortal state in the village, from where, he had been taken for medical treatment at several places, however, subsequently on 24.07.2010, while taking him to S.G.P.G.I., Lucknow, he breathed his list.
18. It is alleged that the first informant, father of the deceased, tried to lodge the report at the Police Station Mangalpur, however, his first information report was not registered, instead death information report was recorded at the Police Station vide G.D. Report No. 43 at 21:30 Hours on 25.07.2010. On the basis of which, the police conducted the inquest and post-mortem of the deceased but did not lodge his report.
19. Ultimately, on an application under Section 156(3) CrPC, his first information report was registered on 26.07.2010 at 16:00 Hours. The police, after concluding the investigation, submitted the charge-sheet only against three nominated accused-respondents Guddu, Pintu and Awadhesh Kumar, however, other two nominated accused persons Lakhan Lal Pandey and Surendra Pal and four other unknown persons were exonerated and no charge-sheet has been submitted against them.
20. During the course of trial, though PW-1, PW-2 and PW-3 have corroborated the prosecution story but in their cross-examination, they have not corroborated the prosecution story and have categorically stated that they can not point out the exact date and time, when the accused persons had taken their son Dharmendra to Nainital. The day, month and year could not be specifically stated by them. They also could not state the day, month and year, when his son Dharmenra returned.
21. It is further stated that when his son Dharmendra returned from Nainital, he found him in an unconscious state near the School and had taken him to the Hospital at Jhinjhak and in an unconscious state itself, he was referred to Hallet Hospital, Kanpur.
22. He further admitted the fact that his son was in a mortal state and as such, he had taken him to the Hospital at Jhinjhak, from where, he was referred to Hallet Hospital, Kanpur and from there, to S.G.P.G.I., Lucknow in an unconscious state and while being taken there, he breathed his last.
23. He further categorically stated in his cross-examination that " मेरा बेटा शुरूआत से लेकर आखिरी तक बेहोश ही रहा, मरने तक बेहोश ही रहा। यह बात सही है कि मेरा बेटा बोल चाल नहीं कर पा रहा था, केवल सांस ही चल रही थी।"
24. He further stated that when his son Dharmendra was in a mortal state, his in-laws, brother-in-law, sister-in-law or nephew never came to help him nor contributed any money for treatment of his son. Consequent to which, he alongwith his family members got enraged and consequently, due to this reason, instituted the case against the accused-respondents, thus on the basis of said testimony, he has rightly not been held to be a reliable witness.
25. Similarly, PW-2 Smt. Chhoti, mother of the deceased, though in her examination-in-chief reiterated the prosecution story, however, in her cross-examination, she has categorically stated that " जब लड़का मुझे मिला था तो उसको चोट थी और बेहोश था बेहोशी हालत में उसे कई अस्पताल में ले गये थे। उसका इलाज करवाते रहे थे। इतनी ज्यादा चोट थी कि उसे कभी भी होश नहीं आया।"
26. Thus, from perusal of her cross-examination, it is evident that the victim was found in an unconscious state and never regained consciousness even during the course of treatment and thereafter, died.
27. Even, PW-3 Kailash, in his cross-examination, has categorically stated that "मुल्जिमान धर्मेन्द्र को स्कूल के पास छोड़ कर चले गये इसकी जानकारी मुझे चार बजे शाम को हुयी। यह बात गांव के बच्चों से पता लगी। गांव के बच्चों ने यह बात नहीं बतायी थी कि धर्मेन्द्र को कितने बजे छोड़कर मुल्जिमान चले गये।
28. Thus, from the testimony of PW-3, it is evident that the victim was found in an unconscious state and despite treatment at several hospitals, did not regain consciousness and thereafter, died. The testimony of PW-1 and PW-2 clearly shows that dying declaration, alleged to have been made by the deceased to PW-1 as stated in the examination-in-chief, is nothing but a cooked-up and concocted version and contradicted by PW-1 in his cross-examination and therefore, no reliance can be placed on the said part of the testimony of PW-1.
29. Thus, upon going through the entire testimony of the prosecution witnesses, it is evident that neither PW-1 nor PW-2 or PW-3 are the reliable witnesses and there are serious contradictions in their statements, which makes the prosecution story highly doubtful. The trial court, after considering the entire testimonies of the prosecution witnesses, has recorded a specific finding that from the evidence adduced during the course of trial, the prosecution has not been able to prove its case beyond all reasonable doubts and as thus, acquitted the accused-respondents of both the charges framed against them.
30. The said finding recorded by the trial court, in our opinion, is just, proper and legal and do not suffer any perversity or illegality and appears to be a possible view, which we reiterate.
31. In the backdrop of the said facts and circumstances, the application to grant leave to appeal in the instant case is wholly misconceived and is liable to be outrightly rejected. Accordingly, the prayer for grant leave to appeal is hereby refused and the application is rejected. Consequently, the instant government appeal, being devoid of merits, is also dismissed.
32. Let a certified copy of this judgment and order be forwarded to the court concerned alongwith trial court record for information and necessary compliance.
Order Date:- 04.09.2024 Nadim