Allahabad High Court
Ram Niwas And Others vs State Of U.P. on 29 September, 2016
Author: Bala Krishna Narayana
Bench: Bala Krishna Narayana
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 40 Case :- CRIMINAL APPEAL No. - 780 of 2005 Appellant :- Ram Niwas And Others Respondent :- State Of U.P. Counsel for Appellant :- Saurabh Gour,Dileep Kumar,K C Yadav,R.P.Singh,Rajeev Gupta,Sanjay Kumar Pandey,Suresh Gaur,Uma Nath Pandey Counsel for Respondent :- Govt. Advocate Hon'ble Bala Krishna Narayana,J.
Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble Bala Krishna Narayana,J.)
1. Heard Sri V.K. Sharma Advocate assisted by Sri K.C. Yadav, learned counsel for the appellants and Sri Saghir Ahmad and J.K. Upadhyay, learned AGAs in opposition.
2. This appeal is directed against the judgment and order dated 14.2.2005 passed by Session Judge, Basti in ST No. 29/2001 (State Vs. Ram Niwas and 2 others) whereby the appellants have been convicted and sentenced to undergo rigorous imprisonment for life together with fine of Rs. 2000/- under Section 302/34 IPC, three years rigorous imprisonment and fine of Rs. 1000/- each under Section 326/34 IPC and one year rigorous imprisonment and fine of Rs.500/- each under Section 452/34 IPC. In case of default in the payment of fine, appellants were required to go additional simple imprisonment of six months, learned Session Judge directed that all the sentences shall run concurrently.
3. The facts and circumstances giving rise to this appeal are as under :
(a) In the night of 10/11.10.2000 while Sukaie Prasad (deceased) and his daughter Km. Nisha aged about six years were sleeping in the vberandah of their house in Village Parari Kunwar, District Basti and the complainant Somaie Prsad PW1 was on the roof of the same house after taking his meal, at about about 12 O' clock he saw Ram Niwas and Chhedi Lal of Village Parari Kunwar entering into the verandah of his house where his brother Sukaie Prasad was sleeping and thereafter accused Ram Dutt and Chhedi Lal pulled off the Tahmat by which his brother had covered himself while sleeping and Ram Niwas who was carrying with him a container of acid, poured the same on the body of his brother Sukaie Prasad and his daughter Km. Nisha whereupon they raised an alarm on which PW1 Somaie Prasad, his elder brother Ram Jas and neighbours Sukhram and Moti rushed to the spot along with several other villagers on which the accused started running away from the spot. They were chased by the witnesses but the accused could not be apprehended by them. Both the injured were taken by the PW1 Somaie Prasad to Faizabad for treatment. The doctor after giving medical aid to Sukaie Prasad referred him for treatment to Lucknow and while PW1 was making arrangement for taking Sukaie Prasad to Lucknow he died in Faizabad outside the hospital premises. The complainant PW1 then took the dead body of the Sukaie Prasad to the police station and handed over the same to the police along with the written report of the occurrence Ex. Ka9.
(b) On the basis of Ex. Ka9 case was registered at crime no. 304/2000, under Sections 304, 326 and 452 IPC vide report no. 30 at 16:10 hours on 11.10.2004, chek FIR Ex. Ka10 was prepared and the case was entered into the GD. The carbon copy of the relevant GD entry has been brought on record as Ex. Ka11. Enmity emanating from civil litigation between the parties which was pending for the last four years was stated to be the motive behind the commission of murder of Sokaie Prasad by the appellants.
(c) The Investigating Officer of the case Sri Harish Chandra, PW8, SO Sonhar, District Basti took the cadaver of the deceased in his custody and after holding the inquest he prepared inquest report Ex. Ka12 and sent the dead body of Sukaie Prasad for post mortem along with relevant papers, namely letters addressed to CMO and RI, photo nash and sample of seal etc. The Investigating Officer PW8 prepared the site plan of the place of occurrence which is Ex. Ka23 and collected the prescriptions relating to the treatment of deceased Sukaie Prasad from Faizabad Hospital where he was admitted for treatment immediately after the occurrence which have been brought on record as Ex. Ka13, Ka Ex. Ka18, Ex. K20 and Ex. Ka21 and his injury report Ex. Ka15. The Investigating Officer collected the prescription of Km. Nisha from District Hospital, Faizabad which is Ex. Ka19. The Investigating Officer also took into his possession the burnt and semi burnt clothes of the deceased and the injured person and prepared recovery memo Ex. Ka25. After completing the investigation, he submitted charge sheet against all the accused under Sections 302/34 IPC, 326/34 and 452/34 IPC before the CJM, Basti.
(d) Since the offence under Section 302 IPC mentioned in the charge sheet against the appellants was triable exclusively by the Court of Session, he committed the case for the trial of the accused to Session Court where it was registered as ST No. 29/2001 (State Vs. Ram Niwas and 2 others).
(e) Learned Session Judge, Basti framed charge against the appellants under Section 302/34, 326/34 and 452/34 IPC. The accused denied the charges framed against them and claimed trial.
(f) The prosecution in order to prove its case against the accused examined as many as eight witnesses, of whom complainant Somaie Prasad PW1 injured witness Km. Nisha PW2 are witnesses of fact while the remaining witnesses PW3 Keshav Prasad, PW4 K.M. Gupta, PW5 Dr. S.P. Rai PW6 Dr. Ramesh Chandra, PW7 Dr. R. Dwivedi and PW8 Harish Chandra formal witnesses. The documentary evidence adduced by the prosecution has been referred to in the impugned judgment and the same need not be reproduced again.
(g) All the three accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and alleged false implication due to civil dispute between the parties. The defence examined Sukhram and Moti as DW1 and DW2.
4. The learned Session Judge, Basti after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted the appellants and awarded aforesaid sentences to them.
5. Sri VK Sharma, learned counsel for the appellants submitted that the incident having been taken place at mid night and admittedly there being no source of any light at the place of occurrence and lodging of the FIR after an inordinate and unexplained delay of sixteen hours and ten minutes leads to only one inference that the prosecution case as spelt out in the FIR was concocted and fabricated by the prosecution after due deliberations and consultation with the object of falsely implicating the appellants in this case due to previous enmity between the parties which emanated from a civil dispute between them. He also submitted that of the two eye witnesses examined by the prosecution for proving the complicity of the appellants in the commission of the crime in question, the presence of PW1 complainant Somaie Prasad at the place of incident is highly doubtful from the perusal of evidence of the PW2 itself. Even if it assumed for the sake of arguments that PW1 was present in the house of the deceased, it was impossible for him either to have witnessed the accused entering into the verandah where deceased was sleeping with his daughter or their pouring acid on them, from the place on the roof of the house where he according to his own evidence was present at the time of the incident. Learned counsel for the appellants has referred to the site plan of the incident as Ex. Ka23 in support of his aforesaid argument.
6. He next submitted that as far as the evidence of PW2 Km. Nisha on the point of her having seen and recognized the accused who had entered into the verandah where she was sleeping with her father and had after removing the tahmat of the deceased with which he had covered himself while was sleeping poured acid on them, as the appellants is concerned, the same amounts to a material improvement made by her in her statement recorded before the trial Court as she had not disclosed the names of the appleants as accused in her statement recorded under section 161 Cr.P.C. to the investigating Officer and this fact has been admitted by the investigating Officer also in his cross-examination on page 51 of the paper book and hence the evidence of PW2 is also liable to be excluded from consideration for the purpose of convicting the appellants. He next submitted that there was absolutely no occasion for appellants nos. 1 and 2 Ram Niwas and Chhedi Lal who are the real brothers and residents of village Deorahiya which is at a distance of about 10 kms from the place of the incident to be present at the place of incident at the time of the occurrence and they have being implicated by the complainant in the present case on the basis of absolutely false and concocted allegations with the object of gaining an upper hand in the civil litigation which is pending between the appellant nos. 1 and 2 and the complainant's family pertaining to land. He also submitted that although according to the FIR version itself, upon hearing the noise raised by the victims large number of villagers including the neighbours of the deceased, Sukhram and Moti had arrived at the place of incident and seen the accused running away from the place of incident but the prosecution failed to produce even a single independent witnesses and produced PW1 and PW2 alone to prove the prosecution case, who are the real brother and daughter of the deceased hence highly interested and partisan and no reliance can be placed on their evidence for the purpose of upholding the appellants' conviction. He lastly submitted that such being the state of evidence, the recorded conviction of the appellants and the sentences awarded to them by the trial Court cannot be sustained and are liable to be set aside.
7. Per Contra Sri Sageer Ahmad, learned AGA submitted that the delay of about sixteen hours and ten minutes in lodging the FIR has been satisfactorily explained by PW1 in the FIR as well as in his testimony recorded before the trial Court. Both the prosecution witnesses have fully corroborated the prosecution Case on all material aspects. The failure of the investigating Officer to mention the names of the appellants as accused in the statement of PW2 recorded by him under Section 161 Cr.P.C., would not render her testimony unreliable or untrustworthy in view of the fact that she in her cross-examination on page 32 of the paper book has categorically deposed that she had disclosed the names of all the three accused to the Investigating Officer but no one had informed her that their names were not mentioned by him in her statement. Sri Sageer Ahmad next submitted if even for the sake of arguments it is presumed that PW1 could not have seen the incident, considering the place on the roof of the house where he claimed himself to be present at the time of the Occurrence but his evidence on the point his having seen the accused retreating from the place of the incident cannot be doubted. Sri Sageer Ahmad went a step further and submitted that even if the contention of learned counsel for the appellants that PW1 was not present at all at the time of occurrence is accepted, even then there is unimpeachable and sterling evidence of PW1, who had received injury in the occurrence and whose presence at the place of occurrence cannot be doubted at all, incriminating the appellants and providing their complicity in the commission of the crime in question. The finding of guilt recorded by learned Session Judge in the impugned judgment against the appellants is based on cogent and reliable evidence and the sentences awarded to them are supported by relevant considerations. The impugned judgment and order do not suffer from any illegality or infirmity warranting any interference by the Court.
8. We have very carefully heard learned counsel for the parties and scanned the entire lower Court record.
9.FIR: As per the prosecution story the incident had taken place in the mid night of 10/11/10.2000. The written report of the incident Ex. Ka9 was sribed by one Ram Dheeraj on the dictation of Somale Prasad and given at police station Parashuram Pur, District Basti on 11.10.2000 at about 16:10 hours. It has been deposed by PW1 in his examination in Chief recorded before the trial Court that since the condition of his brother and daughter Km. Nisha had become very serious he had taken both of them for treatment to Faizabad Hospital and had got them admitted there. The doctor had adviced him to take his brother for treatment to Lucknow but before he could be transported to Lucknow he died in Faizabad Hospital. Thereafter he had taken the dead body of his brother to the police station Parashuram Pur and had got the report of the incident scribed by his brother Ram Dheeraj on the paper purchased by him from a shop in Parasnath Bazar. The written report was given by him at police station Parashuram Pur on the basis of which case was registered against the accused. On Page 25 of the paper book PW1 in his cross-examination he has deposed that the doctors had referred his brother for treatment to Lucknow between 8am-9am but before he could arrange necessary transport for taking his brother to Lucknow he died at about 12 noon.
He denied the suggestion given to him by the defence that the doctors had adviced him to take his brother to Lucknow between 4am-5am and at that time his brother was fully consious and was loudly proclaiming that the complainant and his brother Shiv Shanker had poured acid on him.
Although there is no material on record indicating the distance between village Parashuram Pur and District Hospital Faizabad but on the persual of the testimony of PW1 it transpires that the explanation for delay in lodging the FIR furnished by him is absolutely vague and according to his own showing the doctor had advised him between 8am-9am to take his brother to Lucknow. There is no satisfactory explanation for the delay of about 8 hours on the part of the complainant in lodging the FIR of the incident after the doctor who had treated his brother at District Hospital Faizabad had referred him for further treatment to Lucknow between 8am-9am on 11.10.2000. The vague explanation furnished by PW1 in his evidence for the delay in lodging the FIR that while he was making arrangements for transporting his brother to Lucknow he died at about 12 noon, does not appear to be convincing and moreover there is no whisper of any explanation for his not lodging the FIR thereafter till 4:10 PM. There is further no explanation for the failure of the other two brothers of the deceased, Shiv Shanker and Ram Jas who according to the prosecution case were also present at the place of incident and had accompanied both the injured to the hospital, for having not intimated the police about the incident promptly. Under the facts and circumstances of the present case, we find that the prosecution has not been able to come up with any satisfactorily explanation for the inordinate delay in lodging the FIR. Delay in lodging the FIR has deprived the FIR of the advantage of spontaneity and the possibility of the prosecution utilizing the intervening period for concocting and embellishing the prosecution case cannot be ruled out. It is true that in the normal course of human conduct where in an incident two members of a family have received serious acid burn injuries the first priority of the family members would be to secure best medical treatment for them so that their lives are saved rather than immediately rushing to the police station for lodging the FIR. Even if some latitude is given to the prosecution considering the fact that two persons of the complainant's family had received burn injuries in the incident, naturally his first priority was to provide medical treatment to them promptly, even in that case delay of almost 8 hours from the time at which the doctors at Faizabad had referred the brother of the deceased for treatment to Lucknow on the part of the complainant and his other brothers in lodging the FIR is not justified.
As far as the issue of motive in this case is concerned, there is documentary evidence on record showing that civil litigation was pending between complainant's family and the appellants arising from a land dispute before the Civil Court for the last four years preceding the date of the incident. PW1 claimed that on account of the aforesaid civil litigation the appellants were inimical towards him and his family members and with the object of gaining an upper hand in the civil litigation the appellants had committed the murder of his brother. For proving the existence of civil litigation between the parties the prosecution has brought on record certified copy of the plaint of the suit no. 1025/1992 filed by Ram Dutt, appellant no. 3 against the brother of the complainant for cancellation of the sale deed, written statement filed by the complainant and his brother in the aforesaid suit Ex. Ka5 and the judgment passed in suit no. 1025/1992 by which the aforesaid suit was dismissed, the sale deed executed by Sumarin in favour of the complainant and his brother, copy of the sale deed executed by Sumarin in favour of the accused, certified copy of the mutation application, certified copy of the objection in mutation application, order of dismissal of the mutation application and written report submitted in the mutation case. All the aforesaid documents were proved by PW1 as Ex. Ka3, Ex. Ka4, Ex. Ka5, Ex. Ka6. Ex.Ka7, Ex. Ka8, and Ex. Ka9. Thus as far as the motive in this case is concerned it can safely be presumed that both the sides were inmical towards each other due to the civil litigation between them and had motive to harm each other either by eliminating the opponents or falsly implicating them in a criminal case, as enimity is a double edged sword. However motive looses significance in a case of direct evidence and if the prosecution is able to prove it's case by eye witnesses account of which is trustworthy, unimpeachable, reliable and inspires confidence, the failure of the prosecution to prove motive will not render the prosecution case liable to be disbelieved.
As far as the issue relating to the time at and the manner in which the assault was made are concerned, the same have not been challanged by learned counsel for the appellants. The only issue raised by him is that although the offence was committed by someone else the appellants have been falsly implicated in this case.
The next issue which arises for our consideration is with regard to the credibility of the prosecution witnesses. Learned counsel for the appellants has castigated the reliability of the two eye witnesses produced by the prosecution at the trial on the ground that both are highly interested and partisan witnesses being the real brother and the daughter of the deceased, PW2 further being a child witness vulnerable to tutoring and hence no reliance can be placed on their testimony for the purpose of convicting the appellants. Learned counsel for the appellants has also argued that the incident having taken place in the darkness of night and there being no source of any light at or near the place of the incident it was not possible either for the PW1 or PW2 to have recognized the assailants. The fact that PW2 had not been able to identify the perpetrators of the crime is evident from the fact she had failed to disclose the names of the appellants as the persons who had poured acid on her and her father in her statement recorded under Section 161 Cr.P.C., and had nominated the appellants as accused for the first time in her statement recorded during the trial. As regards PW1, learned counsel for the appellants has submitted that from the persual of the evidence of PW2 itself, it transpires that PW1 was not present at place of the incident and even if he was present in the house of the deceased, considering the fact that he was on the roof of the house in the verandah whereof the occurrence had taken place, it was not possible for him to have witnessed the same.
Sri Sageer Ahmad, learned AGA submitted that mere fact that the appellants were not named in the statement made by PW2 before the police officer under Section 161 Cr.P.C., the evidence of PW2 tendered in the Court cannot be termed as unreliable. In support of his aforessaid submission he has placed reliance upon the paragraph 22 of the Apex Court Judgmenet reported in (2014) 4 Supreme Court Cases 747 (Ashok Debbarma @ Achak Debbarma.
10. Before proceeding to test the veracity of the facts stated by the two eye-witness and their credibility on the touch stone of the submissions made by the learned counsel for the appellants, we consider it proper to examine the law on the issue of interested witnesses:
In Mst. Dalbir Kaur v. State of Punjab 1976 Cr LJ 418(SC) following observations were made:
(i) Interested witness:- Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon.
(i)The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or the some other reason. In the reported case the incident took place at mid night inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is very natural witness cannot be regarded as an interested witness.
Thus what follows from the reading of the aforesaid authorities is that the evidence of a relative cannot be discarded merely on account of his being interested or related with the deceased.
11. As regards interested witness the Hon'ble Apex Court in the case of Mst. Dalbir Kaur v. State of Punjab 1976 Cr. LJ 418 (SC) has held that relatives who are the natural witnesses are not interested witnesses and their testimony can be relied upon by the Apex Court and the same judgment observed that the term interested "postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other is convicted either because he had some animus with the accused or for some other reason".
12. In the present case the incident had taken place at mid night inside the verandah of the house of the deceased where he was sleeping with his daughter and his brother Somaie Prasad was on the roof of his house. Hence the only natural witness who could be present to see the assault were the persons present in the house. At that time no outsider can be expected to have come because attack was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness unless he had some animus with the accused. In the present case considering the previous enmity between the complainant and the appellants between whom civil litigation was pending is admitted to PW1. Thus it cannot be said that PW1 had neither any animus with the accused nor he had direct interest in seeing the appellants who were litigating with him and his family members before the Civil Court are convicted. Moreover his presence at the time of the incident does not appear to be natural. Even if he was present at the time of the incident in the house of the deceased the occurrence which had taken place in the verandah of the house could not have been witnessed by him from it's roof. The aforesaid fact stands corroborated from the site plan of the place of occurrence Ex. Ka11. For ascertaining the material fact whether PW1 Somaie Prasad was present in the house at the time of the incident, we consider it proper to analyse the evidence of PW2 Km. Nisha. PW2 has admitted in her evidence that there was no source of light available at the time of the incident. PW2 however in her examination in Chief stated that she had recognized the accused as appellants in the moon light. PW2 on page 31 of the paper book in her cross-examination she deposed that PW1 Somale Chacha has got a fertilizer shop at Bharatiya crossing and he also performs worship on Krishna Janamashthami by installing statue of Lord Krishna on the said crossing. On the date of the incident worship of Lord Krishna was organized at Bharariya crossing and her elder sister etc., had gone to participate in the worship and rest of the family members had stayed back. She then hastened to add that Shiv Shankar and Ram Jas(bade dada) were also in the house along with PW1 and her father while rest of her family members had gone to see the fair. She further deposed on the same page that Shiv Shankar and Ram Jas had taken her and her father after the occurrence for treatment to Faizabad. Somaie chacha PW1 had also reached at Faizabad Hospital.
13. The facts stated by PW2 in her cross-examination clearly indicate that although Somaie Pal was not present in the deceased's house at the time of the incident and was performing some pooja at the Bharariya crossing where he had his own fertilizer shop and upon coming to know about the incident he had rushed to the District Hospital Faizabad, where PW2 and her father had been taken by Shiv Shankar and Ram Jas for treatment. Thus the Claim of PW1 regarding his presence at the place of the incident at the time of occurrence and his having taken PW2 and her injured father Sokaie Prasad to the hospital stands falsified from the evidence of PW2 and hence no reliance can be placed on his evidence. Now we are left the evidence of PW2 Km. Nisha alone who had received acid burn injuries in the incident and whose presence at the place of incident cannot be doubted. Although she is a child witness but she was found by the trial Court competent to depose and hence her evidence can be relied on as basis of conviction provided her evidence is found to be reliable and there is no likelihood of her being tutored. It has been argued by the learned counsel for the appellants that the statement of PW2 cannot be relied upon for the purpose of convicting the appellants because PW2 had failed to nominate the appellants as accused before the Investigating Officer in her statement recorded under Section 161 Cr.P.C., and her act of nominating the appellants as the persons who had committed the offence for the first time in her evidence recorded before the trial Court was clearly a material improvement made by her in her evidence tendered before the trial Court and also on the ground that it was not possible for her to have recognized the accused as there was no source of light available at place of occurrence at the time of the incident. It is true that PW2 did not disclose the names of the persons who had committed the offence to the Investigating Officer when her statement was recorded by him under Section 161 Cr.P.C., however when she was confronted with her statement recorded under Section 161 Cr.P.C., in her cross-examination she deposed that she had disclosed the names of all the three accused to Daroga Ji and no one had informed her that Daroga Ji had not mentioned the names of the accused in her statement. The suggestion given by the defence cousel to her that she was naming the appellants as accused on being instructed to do was denied by her and she stated that all the three accused were known to her since before the incident and she had nominated them as accused not on account of any tutoring or prompting. The Investigating Officer of this case PW8 Harish Chandra however categorically stated in his cross-examination on page 50 of the paper book that PW2 Km. Nisha had not disclosed to him the names of the accused in her statement recorded under Section 161 Cr.P.C. We do not find any reason to disbelieve the statement of PW8 Harish Chandra on the aforesaid point. More so when he had mentioned the names of the appellants as accused in the statement of PW1 recorded by him under Section 161 Cr.P.C. There is no suggestion on behalf of the prosecution that the Investigating Officer was either biased or had not investigated the matter fairly. Thus we do not find any reason to accept the statement made by PW2 in her cross examination that although she had disclosed the names of the appellants as accused to the Investigating Officer he did not mention the same in her statement.
While examining the issue whether evidence of a witness is liable to be rejected merely on account of the fact that accused was not named in the statement made before the police under Section 161 Cr.P.C., the Apex Court in the case of Ashok Debbarma@Achak Debbarma(supra) has observed as hereunder:
"the mere fact that the appellant was not named in the statement made before the police under Section 161 Cr.P.C., and due to this omission, the evidence of PW10 and PW13 tendered in the Court is unreliable, cannot be sustained. Statements made to the police during investigation were not substantive piece of evidence and the statements recorded under Section 161 Cr.P.C., can be used only for the purpose of contradiction and not for corroboration. In our view, if the evidence tendered by the witness in the witness box is creditworthy and reliable, that evidence cannot be rejected merely because a particular statement made by the witness before the Court does not find a place in the statement recorded under Section 161 Cr.PC. The police officer recorded statements of witnesses in an incident where 15 persons lost their lives, 23 houses were set ablaze and large number of persons were injured. PW10 lost his real brother and PW13 lost his daughter as well as his wife and in such a time of grief, they would not be in a normal state of mind to recollect who were all the miscreants and their names. The witnesses may be knowing the persons by face, not their names. Therefore, the mere fact that they had not named the accused persons in Section 161 statement, at that time,that would not be a reason for discarding the oral evidence if their evidence is found to be reliable and creditworthy.
The legal proposition enunciated by the Apex Court in the case of Ashok Debbarma@Achak Debbarma(supra) that "mere fact that accused is not named in the statement made before the police under Section 161 Cr.P.C., will not render the evidence of such witness unreliable provided his evidence is found to be reliable and creditworthy", cannot be disputed but whether under the facts and circumstances of the present case can the evidence of PW2 be termed as unblemished. It is proved from the evidence of PW1 that there was enemity between the complainant and his family members and the appellants arising out a land dispute with regard to which the parties were litigating before the Civil and Revenue Courts and the possibility of the PW1 falsely implicating the appellants in the present case with the object of gaining an upper hand in the civil litigation and as such his having a direct interest in seeing that the appellants are convicted cannot be ruled out. The inordinate delay in lodging the FIR which the prosecution has failed to explain satisfactorily is another circumstance which gives rise to an inference that the prosecution case as spelt out in the FIR was concocted after due deliberations with the object of falsely implicating the appellants. The claim of PW1, as we have already noted, of his being the eye witness of the occurrence stood falsified from the evidence of PW2 itself and hence no reliance can be placed on the FIR version which is the brain child of PW1 and as far as PW2 is concerned there is no dispute about the fact that she had failed to take the names of the appellants as the person who had assaulted her and her father in her statement recorded under Section 161 Cr.P.C. This fact was corroborated by PW8 Harish Chandra, Investigating Offcer of this case and his cross-examination and in the absense of source of any light at the place of the incident at the time of the occurrence amd the facts deposed by her in her evidence recorded before trial Court to the effect that before the occurrences she was sleeping , it was not possible for her to have either seen the appellants entering into varandah and pouring acid on her and her father as she would have woken up only after few drops of acid had fallen on her. In the background of the aforesaid facts the possibility of the statement made by PW2 that the offence of pouring acid on her and her father was committed by the appellants, for the first time in her evidence tendered before the trial Court being tutored cannot be ruled out. The FIR was lodged by PW1 nominating the appellants with whom he had animosity as accused whose testimony does not inspire any confidence. PW2 did not disclose the names of the appellants as accused to the Investigating Officer apparently because she had not been able to recognize the assailants due to darkness. The possibility of PW2 being tutored by PW1, who was in a position to dominate and influence her, being her real uncle, to name the appellants as accused when she came to give her evidence before the trial Court cannot be ruuled out. In view of the above, we do not find the evidence of PW2 reliable and trustworthy.
Thus in view of the foregoing discussion, we are unable to uphold the judgment and order dated 14.2.2005 passed by Session Judge, Basti convicting and sentencing the appellants, under Sections 302/34, 326/34 and 452/34 IPC. This appeal accordingly succeeds and is allowed. The impugned judgment and order is hereby set aside. The appellants are in jail. They shall be released forthwith from the jail unless they are wanted in any other case.
However, keeping in view the provisions of Section 437-A Cr.P.C., appellants are directed to forthwith furnish a personal bond in the sum of Rs. One lakh and two reliable sureties in the like amount before the trial Court, (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the Instant Judgment or for grant of leave, the appellants on receipt of notice thereof shall appear berfore the Hon'ble Supreme Court.
Order Date:- 29.9.2016/SA