Allahabad High Court
State Of U.P. vs Anuj And 2 Others on 18 July, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 42 Case :- GOVERNMENT APPEAL No. - 26 of 2021 Appellant :- State of U.P. Respondent :- Anuj And 2 Others Counsel for Appellant :- A.G.A. Counsel for Respondent :- Birendra Singh Khokher,Vijay Kumar Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
(Oral Judgment by Hon'ble Vikas Budhwar, J.)
1. Heard Sri Ratan Singh, learned A.G.A. and Sri Vijay Kumar, learned counsel appearing on behalf of the accused-respondents.
2. In view of the unfortunate incident of fire that which had taken place in the office of Advocate General and an administrative order so passed by Hon'ble The Chief Justice, learned counsel for the accused-respondents Sri Vijay Kumar has supplied a copy of the records of the present appeal to learned A.G.A. and has received the paper book in the Court and both the side agreed to argue the matter on merits, therefore, we proceed to hear the matter.
3. State of U.P. has approached this Court while instituting appeal under Section 378 of the Criminal Procedure Code (In short Cr.P.C.) assailing the judgment and dated 12.10.2020 passed by Additional Sessions Judge, Fast Track Court No.2, Baghpat in Sessions Trial No.161 of 2018 (State Vs. Anuj & 2 others) in Case Crime No.850 of 2017, under Sections 147, 148, 149, 307, 504, 332, 353 IPC, P.S. Badaut, District Baghpat acquitting the accused respondents.
4. While unfolding the prosecution case, it emerges that a written complaint was lodged before the Sub-Inspector Munesh Pal Pawar (PW2) which transformed into lodging of a first information report on 22.8.2017 in Case Crime No 849 of 2017, under Sections 323, 504, 506, 354A, 307, 34 IPC with the allegation that in order to investigate the said case PW2 being Munesh Pal Pawar proceeded from the Police Station and reached the Chowki at industrial area and thereafter while accompanying Constable 912 Omvir (PW1) and H.G. 276 Satyapal (PW5) went to the place of occurrence whereat they had to investigate the allegation which emanated from the FIR dated 22.8.2017, being Case Crime No.849 of 2017, under Sections 323, 504, 506, 354A, 307, 34 IPC.
5. As per prosecution when the aforesaid three persons reached the place of occurrence then the informant in the Case Crime No.849 of 2017 along with her parents were seen to have been subjected to hurling of abuses by certain persons uttering that the informant of the Case Crime No.849 of 2017 may make complaints before any authority but nobody can do anything adverse against unknown persons.
6. According to the prosecution, the informant being PW2 along with the above noted two police personnel tried to convince them not to indulge in such type of activities but as per the prosecution case the above mentioned unknown persons indulged into hurling of abuses and administered beating (Marpeet) and further tried to grab the licence pistol so possessed by the informant PW2 and with the help of one Boby son of Vijay Pal resident of Awas Vikas Badaut, Police Station Badaut, Mohit son of Suresh, Prakash and Jasvir son of Vishahambhar Sharma after great efforts could catch hold of one of the unknown persons and at the relevant point of time the said unknown person made firing upon the informant, however the informant could save himself from them.
7. Consequent to catching hold of unknown persons one was indentified as Annu son of Ravindra Singh accused respondent no.1 and it is further stated that from his possession a country-made pistol 315 bore containing one cartridge which was struck therein and was further smelling and from the right pocket of the shorts a live cartridge 315 bore was recovered. Second person so caught hold was Aunj son of Ravindra, however no recovery was made from him and so far as the third person is concerned he identified himself to be Krishnavir son of Begraj, resident of Pushar, P.S. Doghat district Baghpat and from his possession nothing was recovered. It has further been stated that one H.G.149 Ramesh Chandra the driver Sant Kumar H.G. 289 and Pravindra were also present who witness the said incident.
8. Accordingly, a first information report being Case Crime No.0850 of 2017 was registered before Police Station Badaut, district Baghpat on 22.8.2017 showing the commission of the incident at 14.15 hours against the three named accused who are respondents herein and two unknown persons under Sections under Sections 147, 148, 149, 307, 332, 353, 504 IPC.
9. After lodging of FIR in question before the above noted police station PW7 being S.I. Satyavir Singh Bhati was nominated as I.O.
10. In order to bring home the charges the prosecution produced following witnesses namely PW1 Constable Omvir Singh, PW2 S.I. Munesh Pal Singh Pawar (Informant), PW3 Payal @ Meenakshi, PW4 Smt. Santosh, PW5 Head Constable 276 Satya Pal Singh, PW6 Mukesh Kumar and PW7 retired S.I. Satyavir Bhati.
11. The prosecution produced following documents to prove the charges namely (a) Chik FIR (b) H.G. Satyapal medical report site plan (c) charge sheet (d) Medical Report of constable Omvir Singh (e) Medical Report of S.I. Mukesh Pal Singh (f) G.D.
12. The case was committed to Sessions. Charges were read over the accused herein. Accused claimed innocence and not guilty and claimed to be tried.
13. Since the present appeal is under Section 378 of the Cr.P.C. instituted by the State against the judgment of acquittal passed in favour of the accused, thus, this Court has to bear in mind the crucial fact that double presumption of innocence is available with the accused. To put it otherwise, the courts of law while exercising appellate jurisdiction are not supposed to interfere with the judgment of acquittal unless the same is perverse or miscarriage of justice is being meted to other party that too while keeping in mind the fact that there should compel and substantive reasons for interfering as couched in series of decisions namely Tota Singh and another vs. State of Punjab, (1987) 2 SCC 529, Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, State of Rajesthan vs. State of Gujarat, (2003) 8 SCC 180, State of Goa vs. Sanjay Thakran, (2007) 3 SCC 755, Chandrappa and others vs. State of Karnataka, (2007) 4 S.C.C. 415, Ghurey Lal vs. State of U.P., (2008) 10 SCC 450, Siddharth Vashishtha Alias Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1, Babu vs. State of Kerala, (2010) 9 SCC 189, Ganpat vs. State of Haryana, (2010) 12 SCC 59, Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra, (2010) 13 SCC 657, State of U.P. vs. Naresh, (2011) 4 SCC 324, State of M.P. vs. Ramesh, (2011) 4 SCC 786, and Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219.
14. Bearing in mind the proposition of law so mandated by the Hon'ble Apex Court now the facts of the present case are to be analysed in order to determine as to whether the judgment of acquittal so passed in favour of the accused herein seeks interference or not.
15. Taking the clue from the testimony of prosecution witness it transpires that one constable 912 Omvir Singh appeared as PW1 and according to him he was posted as constable in the subject police station on 22.8.2017. He has further stated that S.I. Munesh Pal Singh PW2 came to the Industrial Chowki, whereat he was posted along with H.G. Satyapal Singh PW5 and all three of them proceeded to Kasba Awas Vikas Badaut from where a written complaint was also lodged and a first information report was registered by the informant therein Smt. Payal and when they reached the house of the informant Smt. Payal then they witnessed that some unknown persons were hurling abuses upon Smt. Payal and her parents. All of them witnessing the said utterance tried to pacify them and at that relevant point of time the unknown persons created obstacles and hindrances in the duty so assigned and attached to them and hurled abuses and indulged in beating and tried to snatch the licenced weapon which they were possessing. In the said incident PW1 Omvir Singh, PW2 SI Munesh Pal Singh Pawar and PW5 Head Constable Satypal Singh also claim to sustain injuries and with the aid of the persons, who was standing being Boby son of Vijai Pal, Mohit son of Surya Prakash and Jasvir son of Vishambhar they could catch hold of the accused respondent no.1 Anoop son of Ravindra and from his possession country-made pistol 315 bore as well as a cartridge struck in the pistol and a live cartridge was found.
16. According to PW1 the said incident was witnessed by Ramesh Chandra (Driver), Sant Kumar (Home-Guard) and Pravendra. It was also stated that the two other persons, who were caught hold of were the accused opposite party no.2 Anuj son of Ravindra and accused opposite party no.3 Krishnavir son of Begraj, however no recovery was made from them.
17. S.I. Munesh Pal Singh Pawar, the first informant appeared as PW2, he in his examination-in-chief had narrated the fact that he along with the aforesaid two persons being PW1 and PW5 had gone to Payal's house wherein he also witnessed that some unknown persons were fighting Smt. Payal and are parents and when he tried to pacify then abuses were hurled and beating was administered, weapon which PW2 was sought to be snatched and with the aid of the commuters therein they could save themselves and even in fact firing was also resorted to with country-made pistol and they arrested the accused at 2.15 hours and in the possession of accused Anuj, a country-made pistol and cartridges were found. However, so far as rest accused are concerned, no recovery whatsoever was made from them and constable Omvir PW1 and PW5 H.G. Satyapal sustained injuries.
18. PW3 Smt. Payal @ Meenakshi appeared in witness box and according to her statement she was in a house on 22.8.2017. At that point of time her husband Annu was with him and they were certain altercation between her and the husband Annu. Police also came there, she had not called the police and there was no Marpeet or beating administered in between the police officials and her husband and no firing whatsoever was resorted to by her husband Annu and there was no recovery of any country-made pistol from him.
19. PW4 Smt, Santosh Kumar also appeared in the witness box according to her statement on 22.8.2017, she was not in the house, she had gone to her neighbours place, there was no beating or untoward incident which occurred.
20. PW5 H.G. 276 Satyapal appeared, he deposed that when he was in industrial Chowki on 22.8.2017 then constable Omvir Singh and SI Munesh Pal came and they proceeded to Payal's house when they tried to pacify the unknown persons, who are stated to be fighting with Smt. Payal @ Meenakshi and their parents then beating was administered and Annu accused herein made gun shot fire, however they could save themselves and they arrested the accused at 2.15 hours.
21. PW6 Mukesh Kumar has also appeared as a prosecution witness. According to him his daughter Payal got married with Annu son of Ravindra and on 22.8.2017 her daughter had come to his place and his son-in-law Annu had come to her away of his house. However, certain altercations took place between Payal @ Meenakshi and Annu and at that point of time police came. According to him, there was no Marpeet or hurling of abuses and no act was committed by the accused herein to create obstacle in the duties of the police officials and Krishnavir was not present.
22. As PW7 retired S.I. Satyavir Bhati appeared in witness box, he is the I.O. and according to him he conducted investigation and submitted charge sheet.
23. Coming to the medico legal injury report of the injured, it has come on record that so far as SI Munesh Pal Singh, the first informant PW2 all the injuries are simple in nature and according to the opinion of the doctor, the same may have been caused by hard blunt object and friction against tough surface.
24. So far as the injury report of (PW1) Omvir Singh is concerned, all the injuries were found to be simple in nature and caused by hard blunt object. Similarly, so far as the injury of PW5 Satyapal Singh is concerned, the injuries were found to be simple in nature and caused by hard and blunt object. Thus, it become apparently clear from perusal of the medico legal report that the injuries are simple in nature.
25. As per the first information report dated 22.8.2017 the time of the incident is 14.15 hours on 22.8.2017, PW1 being constable Omvir Singh is an eye witness and claims to be injured in the incident in question. In his cross-examination PW1 has deposed that the incident was at 12-1.00 in the noon on 22.8.2017. He has further stated in his cross-examination that when the accused Annu fired upon him it was 2.10 hours in the noon of 22.8.2017.
26. It is quiet paradoxical and amazing that the time of the occurrence so shown in the first information report is 14.15 hours, however, the incident is shown to be at 12-1.00 p.m. in the noon on 22.8.2017 and the firing so resorted by the accused is shown to be 2.10 hours. So much so far as PW2 S.I. Munesh Pal is concerned, according to him the time of the incident is 1.30 to 2.15 in the noon and further he is not aware about the time when the said incident occurred. The said contradictions in the testimony of PW1 and PW2 itself, discredits the testimony of the above noted two prosecution witness to point the accused towards commission of crime.
27. It is not the case wherein PW1 and PW2 were not the eye-witness and rather in the contrary PW1 and PW2 were eye-witness and claiming to be the injured and PW2 is the first informant having full knowledge about the incident.
28. An additional fact also needs to be considered which is with regard to the issue that PW1 being constable Omvir Singh in his cross-examination has deposed that all three of them being PW1, PW2 and PW5 sustained injuries in body, shoulder and face and they were subjected to medical examination. However, on the contrary PW5 being H.G.276 Satyapal Singh in his cross-examination has come up with a stand that he did not sustain any injuries.
29. The aforesaid contradictions are major contradictions and the same also shows that a case has been engineered by the prosecution to falsely implicate the accused herein. Notably, PW1, PW2 and PW5 are the eye-witness of the incident and alleged commission of crime and thus in the wake of the medico legal report of PW5 showing injuries sustained by PW5 and denying the same by PW5 in his cross-examination itself shows that the entire prosecution theory is exaggerated so as to rope in accused herein.
30. So much so PW1 constable Omvir Singh in his cross-examination has deposed that he is not aware as to whether at the time of the occurrence of the said incident whether the parents of the Smt. Payal were there or not. However, PW2 SI Munesh Pal Singh the first informant in his cross-examination has deposed that he along with PW1 and PW5 had gone to the place of occurrence where large number of people had assembled and about 4 to 5 people were hurling abuses upon the parents of Payal. The said inconsistency in the statement of PW1 and PW2 itself creates a cloud that no such incident whatsoever occurred as obviously PW1 and PW2 both claimed to be eye-witness.
31. Nonetheless PW3 being Payal @ Meenakshi, PW4 Smt. Santosh and PW6 Mukesh Kumar themselves have given the statement despite being the prosecution witness that no such incident occurred on 22.8.2017.
32. The Hon'ble Apex Court has in umpty number of decisions laid down the proposition of law that minor contradiction cannot be a ground to discredit the testimony of the prosecution witness. However, Court has to adopt a pragmatic approach while considering the over all circumstances while separating chaff from the grain. Solely because there are minor contradictions and improvements cannot be only basis to demolish the prosecution version. In the case of Narayan Chetanram Chaudhary and another Vs. State of Maharashtra (2000) 8 Supreme Court Cases 457 para 42 the Hon'ble Apex Court observed as under:-
42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the c testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found d to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. In this regard this Court in State of H.P. v. Lekh Raj²³ (in which one of us was a party), dealing with discrepancies, contradictions and omissions held: (SCC pp. 258-59, paras 7-8) "Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala²4 held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki26 held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
Referring to and relying upon the earlier judgments of this Court in b State of U.P. v. M.K. Anthony27, Tahsildar Singh v. State of U.P.28, Appabhai v. State of Gujarat29 and Rammi v. State of M.P.30 this court in a recent case Leela Ram v. State of Haryana31 held:
'There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same C should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence...
The court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.'
33. In the case of Shyamal Ghosh Vs. State of West Bengal (2012) 7 Supreme Court Cases 646 para 46 & 47 the Hon'ble Apex Court observed as under:-
46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. It is true that there is some variation in the timing given by PW 8, PW 17 and PW 19. Similarly, there is some variation in the statement of PW 7, PW 9 and PW 11. Certain variations are also pointed out in the statements of PW 2, PW 4 and PW 6 as to the motive of the accused for commission of the crime. Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation b may not be enough to adversely affect the case of the prosecution. a
47. The variations pointed out as regards the time of commission of the crime are quite possible in the facts of the present case. Firstly, these witnesses are rickshaw pullers or illiterate or not highly educated persons whose statements had been recorded by the police. Their statements in the court were recorded after more than two years from the date of the incident. It will be unreasonable to attach motive to the witnesses or term the variations of 15-20 minutes in the timing of a particular event as a material contradiction. It probably may not even be expected of these witnesses to state these events with the relevant timing with great exactitude, in view of the attendant circumstances and the manner in which the incident took place.
34. In the case of Kuriya and another Vs. State of Rajasthan (2012) 10 Supreme Court Cases 433 para 30 the Hon'ble Apex Court observed as under:-
30. This Court has repeatedly taken the view that the discrepancies or b improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements.
35. In the case of Rohtash Kumar Vs. State of Haryana (2013) 14 Supreme Court Cases 434 para 24 the Hon'ble Apex Court observed as under:-
24. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant, details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies. drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form grounds for rejecting the evidence on record.
36. Marshalling the testimonies of the prosecution witnesses and the evidences so adduced by them makes it crystal clear that there are material contradictions in the testimony of the prosecution witness as PW1, PW2 and PW5 who claimed themselves to be the eye-witness and injured also. However, PW5 has come up with a stand that he did not sustain any injuries.
37. Time of the occurrence of the incident is concerned the same also varies as PW1 in his cross-examination has deposed that the time of the occurrence is 12-1.00 noon on 22.8.2017 as well as the time of the occurrence of the incident in the FIR is shown to be 2.15 hours. More so PW2 in his statement has deposed that the time of the occurrence is 1.30 to 2.15 hours on 22.8.2017 he on being further asked has deposed in cross-examination that he is not aware about the time.
38. Lastly, but not the least PW1 in his cross-examination has made a statement that he is not aware as to whether on 22.8.2017 at the time of the alleged occurrence of the incident whether the parents of Smt. Payal @ Meenakshi were present or not, however PW2 in his cross-examination had stated that he along with PW1 and PW5 had gone to the place of occurrence and at that point of time about 4-5 persons were abusing the parents of the Smt. Payal @ Meenakshi.
39. Event the other prosecution witnesses being PW3 Payal @ Meenakshi, PW4 Smt. Santosh and PW6 Mukesh Kumar had gone recorded their deposition while making a statement that no such incident occurred on 22.8.2017.
40. Having bestowed anxious consideration over the judgment of acquittal passed by the trial court, this Court finds that the view taken by the trial court cannot be said to be perverse. However, the same is based upon the correct appreciation of the testimony of the prosecution witnesses and careful perusal of the evidences sought to be adduced.
41. The view so taken by the trial court is a possible, plausible view and this is not a fit case wherein this Court should take a different view. In absence of any perversity so sought to be shown by the learned AGA, this Court finds inability to exercise its jurisdiction under Section 378 of the Cr.P.C. while revering the judgment of acquittal into the judgment of conviction.
42. We find that it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
43. Since the application for granting leave to appeal has not been granted, consequently, present appeal also stands dismissed.
44. The records be sent back to the court-below.
(Vikas Budhwar, J.) (Vivek Kumar Birla,J.)
Order Date :- 18.7.2022
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