Allahabad High Court
State vs Nanhey And Others on 6 May, 2022
Bench: Rajan Roy, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 10.02.2022 Delivered on: 06.05.2022 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH, LUCKNOW Court No. - 4 Case :- GOVERNMENT APPEAL No. - 334 of 1983 Appellant :- State Respondent :- Nanhey And Others Counsel for Appellant :- G.A. Counsel for Respondent :- Arun Sinha Hon'ble Rajan Roy,J.
Hon'ble Mrs. Saroj Yadav,J.
(Per Rajan Roy, J.) Heard.
This is an appeal by the State under Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment of acquittal rendered on 16th July, 1982 by learned III Additional Sessions and District Judge, Barabanki in Sessions Trial No.173 of 1981. Leave to appeal has already been granted on 09.05.1983.
According to the report received from the Chief Judicial Magistrate, Barabanki, which we had called earlier, it is only the accused-respondent nos.1(Nanhey S/o Vishram), respondent no.2 (Kesheo Ram S/o Vishram) and respondent no.7 (Ram Nath S/o Mata Prasad) who are alive and the rest have died. Therefore, the appeal as against respondent no.3 (Sheo Narain S/o Bhulai), respondent no.4 (Vishram S/o Bhulai), respondent no.5 (Sita Ram S/o Baiju), respondent no. 6 (Sajiwan S/o Hanuman), respondent no.8 (Paras Ram S/o Ram Sanehai) and respondent no.9 (Mahadeo S/o Ram Ratan) who as per report of CJM, Barabanki have died, has abated in respect to them. It is accordingly dismissed as abated. The appeal as against respondent nos.1, 2 and 7 survives, and is being considered.
At the very outset, it needs to be mentioned that cross cases were filed by rival parties. The respondents herein had filed an F.I.R. on 06.04.1978 at 05:00 P.M. against Bechu s/o Angnoo, Hanuman s/o Angnoo, Raghunath s/o Angnoo, Nanhey s/o Angnoo, Jagjiwan s/o Bechu, Raghubar s/o Bechu and Devidin s/o Hanuman at Police Station-Tikait Nagar, District-Barabanki with allegations of having committed an offence under Section 147, 148, 307, 302 read with Section 149 I.P.C. which was ultimately tried as Sessions Trial No.283/1979 wherein the accused herein were the alleged victims and the informants herein were the accused. The informant side of this case was convicted in said Sessions Trial No.283/1979 which gave rise to Criminal Appeal No.545/1982 [Bechu And Ors. vs. State] by them. The said appeal was also heard along with this appeal and has been decided by a separate judgment wherein the conviction of the accused therein who are the alleged victims/ informants herein has been upheld.
According to the prosecution story in this case, on account of prior altercation between Nanhe-informant herein and Marji Ram's son, a day prior to the incident, regarding latter's cattle having destroyed his crop in respect of which a report was given at Police Station in the morning, Marji Ram and Mahadeo took ill of it that Harijans had given a report against them and as Marji Ram was an old decoit, when the informant along with Hanoman, Bechu, Mahadev and Raghunagh were going towards his agricultural field towards the East of the village at about 1 P.M. on 06.04.1978 during day time for sowing poppy, Marji Ram, Nanhe, Keshav, Shiv Narain, Vishram, Sitaram, Sajiwan, Ramnath, Parshuram came out of the bushes next to the brick kiln armed with lathis, Mahadeo was carrying a Kanta and exhorted to kill them and started beating them up. On his shouting, Sri Ram, Pyare, Thakur, Ganga Ram, Budhai Kumar came to their rescue and scolded the accused even then they did not pay heed. They also used their Lathis and Hasia to defend themselves whereupon the accused ran away. This information was given at Thana-Kotwali, District-Barabanki at about 11:45 P.M. on 06.04.1978, although, the incident took place within the jurisdiction of Police Station-Tikaitnagar, District-Barabanki. Moreover, the F.I.R. of the accused side was lodged on the same day i.e. on 06.04.1978 at Police Station-Tikaitnagar, District- Barabanki at 5 P.M. i.e. prior to lodging of the F.I.R. of the informant side herein. The record reveals that thereafter, a complaint was filed by Hanoman, one of the injured from the defence side, which was also committed to the sessions court for trial before Sessions Trial No.173/1981 and it was clubbed along with Sessions Trial No.283/1979. This appeal arises out of Session Trial No.173 of 1981.
Charge was framed (in Session Trial no.173/1981) by the sessions court against the accused, namely, Mahadeo on 20.10.1981 of having committed the offence punishable under Section 307 read with Section 149 I.P.C. whereas against the other accused persons, namely, Nanhe, Kesho Ram, Shiv Narain, Vishram, Sita Ram, Sajiwan, Ram Nath and Paras Ram, the charge was framed on 20.10.1981 for having committed the offence punishable under Section 307 read with Section 149 I.P.C. As the accused did not plead guilty and demanded trial, therefore, they were put to trial.
Ex.Ka.2 is the injury report of Hanoman S/o Angnoo. Ex.Ka.3 is the injury report of Nanhey S/o Angnoo, Ex.Ka.4 is the injury report of Raghunath S/o Angnoo, Ex.Ka.5 is the injury report of Bachu S/o Angnoo, Ex.Ka.6 is the injury report of Mahadeo S/o Angnoo, Ex.Ka.7 is the X-ray report of Bachu S/o Angnoo, Ex.Ka.8 is X-ray report of Hanoman S/o Angnoo and Ex.Ka.9 is also X-ray report of Bachu S/o Angnoo.
The prosecution examined P.W.1, namely, Raghunath, P.W.2, namely, Nanhey, P.W.3, namely, Dr. Y.K. Jalote who had medically examined injured Hanoman S/o Angnoo, Nanhey S/o Angnoo, Raghunath S/o Angnoo, Bechu S/o Angnoo, Mahadeo S/o Angnoo on 06.04.1978 at about 6:30 P.M. at District Hopsital, Barabanki.
P.W.4, namely, Dr. A.K. Srivastava is the Medical Officer, District Hospital, Faizabad. He conducted X-ray of Raghunath, Hanoman and Bechu on 11.04.1978.
P.W.6 is the Head Constable who was at that time posted at Police Station-Tikaitnagar, District-Barabanki. He has testified that on 06.04.1978 at about 9:50 A.M., Hanoman S/o Angnoo has given a report against the accused regarding which he has made entry in the G.D. Ex.Ka.2, the injury report of Hanoman, reveals six injuries. Four of which were lacerated wounds and two contusions. Injury nos.(1) to (4) were on the head. Injury no.(5) was on left elbow joint and injury no.(6) on lower part of right side of chest. All injuries were noticed as fresh, caused by blunt object. Remark was made that injury nos.(6) and (5) are simple in nature while injury nos.(1) to (4) were kept under observation and X-ray was advised. P.W.3 has proved the injury report.
Inquiry report of Nanhey S/o Angnoo is Ex.Ka.3. Five injuries were detected on his body of which injury no.(1) was lacerated wound and injury nos.(2) and (3) were contusions, injury nos.(4) and (5) were abrasions. All the injuries were noticed as fresh and simple in nature and injury nos.(1), (2) and (3) were caused by blunt object while injury nos.(4) and (5) were caused by friction. P.W.3-Doctor has proved this report also.
Inquiry report of Raghunath is Ex.Ka.4. Six injuries were found on his body of which injury nos.(1), (3) and (4) were lacerated and injury nos.(2) and (5) were contusions. Injury no.(6) was abrasion. All the injuries were mentioned as fresh. Injury nos.(1), (2) and (5) were said to have been caused by blunt object while injury no.(6) was caused by friction. All the injuries were simple in nature. Injury nos.(3) and (4) were kept under observation and X-ray was advised. This Ex.Ka.4 has also been proved by P.W.3.
Inquiry report of Bechu is Ex.Ka.5. Five injuries were detected on his body of which injury nos.(1) to (3) were contusions and injury nos.(4) and (5) were incised wounds. Sri Sinha, learned counsel for the accused submitted that injury nos.(4) and (5) were self-inflicted. P.W.3 has proved this injury report also.
Inquiry report of Mahadeo is Ex.Ka.6. Five injuries were detected on his body of which injury nos.(1) and (2) were lacerated and injury nos.(3), (4) and (5) were contused. All the injuries were marked as caused by blunt object and were simple in nature. P.W.3 has proved this report also.
P.W.3 has stated in his cross-examination that he had not medically examined the aforesaid persons on being sent by police but had taken fee to examine them. P.W.3 was a doctor posted at District Government Hospital.
Ex.Ka.7 is X-ray report of chest of Bechu wherein no bone injury was seen by P.W.4 who had conducted the X-ray five days after the incident i.e. on 11.04.1978.
Ex.Ka.8 is X-ray report of skull of Hanuman, according to which, it revealed fracture of right parietal bone. This X-ray was also conducted on 11.04.1978 i.e. five days after the incident.
Ex.Ka.9 is X-ray report of left forearm and right arm of Bechu which mentions fractured middle third of left radius bone with fracture styloid process of left ulna bone seen in X-ray of left forearm. In X-ray of right arm, chip fracture lower end of right humurous bone was seen. P.W.4 has proved these X-ray reports.
The defence has taken the plea of private defence. Even at the cost of repetition, it needs to be mentioned that in Sessions Trial No.283 of 1979 arising out of the same incident, the informant side of this case have been convicted and they have been held to be the aggressors.
The Supreme Court of India had the occasion to consider the approach required of an appellate court hearing an appeal against a judgment of acquittal by the trial court in the case of 'Ramesh Babulal Doshi vs. State of Gujarat' (1996) 9 SCC 225 wherein it held as under:-
"7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above-quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."
In the case of 'Ram Kumar vs. State of Haryana' AIR 1995 SC 280, it held as under:-
"15.....In this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Ss.378and 379,Cr.P.C.are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. No doubt it is settled law that if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal"
In the case of 'Muralidhar Alias Gidda and Anr. vs. State of Karnataka' (2014) 5 SCC 730 the Apex Court culled out the factors to be kept in mind in such cases as under:-
"12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu, Madan Mohan Singh, Atley, Aher Raja Khima, Balbir Singh, M.G. Agarwal, Noor Khan, Khedu Mohton, Shivaji Sahabrao Bobade, Lekha Yadav, Khem Karan, Bishan Singh, Umedbhai Jadavbhai, K. Gopal Reddy, Tota Singh, Ram Kumar, Madan La, Sambasivan, Bhagwan Singh, Harijana Thirupala, C. Antony, K. Gopalakrishna, Sanjay Thakran and Chandrappa. It is not necessary to deal with these cases individually.
Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(1) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(II) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.
As it is a case of acquittal, therefore, it is necessary, first of all, to consider the findings and reasons given by the court below so as to find out as to whether it is a case for interference under Section 378 Cr.P.C. or not.
In this regard, the contention of Sri Chandra Shekhar Pandey, learned Government Advocate was that injuries on the body of the victims in this case was such as to make out a case of conviction under Sections 147 and 307 read with Section 149 Indian Penal Code. The court below has erred in acquitting the accused. Hence, this appeal.
On a perusal of trial court's judgment, we find that the accused had denied charges and alleged their implication in the crime due to enmity. The trial court has noticed that accused did not lead any oral evidence, however, they filed documents as Ex.Kha.1 which was copy of report of cross-case, Ex.Kha-2 which is copy of the chargesheet of cross case, Ex.Kha.3 which is copy of the siteplan of the cross-case and Ex.Kha.4 which is copy of post-mortem report of the deceased-Marji Ram of cross-case (Sessions Trial No.283/1979 ''State of U.P. vs. Bechu and Ors).
The trial court has noticed that F.I.R. was given in writing by P.W.2-Nanhe at Police Station-Kotwali, according to which, the occurrence had taken place on 06.04.1978 at 1 P.M. and the F.I.R. was registered at P.S.-Kotwali on 06.04.1978 at 11:45 P.M. The distance between the place of occurrence falling within the jurisdiction of P.S.-Tikaitnagar from his village was only six miles. The trial court noticed that the report was not lodged at P.S. Tikaitnagar where it should have been lodged. Further, it noticed the delay in lodging the report and that the statement of P.W.2-Nanhey was silent on this point and he did not offer any explanation in this regard except for saying that he had taken his injured brother to Sadar Hospital, Barabanki and lodged his First Information Report in writing there. He could not explain as to why the First Information Report was not lodged at P.S.-Tikaitnagar earlier in the day when occurrence had taken place at 1 P.M. and the police station from his village lay only at a distance of six miles. The documents filed in defence explain this aspect. The trial court noticed that the F.I.R. in cross-case was lodged on 06.04.1978 at 5:00 P.M. mentioning the incident as having taken place at 02:30 P.M. and the said F.I.R. discloses that one person, namely, Marji Ram had died due to injuries on the spot and others were injured. The trial court has noticed that the F.I.R. in the cross-case was lodged earlier at P.S. Tikaitnagar whereas the F.I.R. in this case was lodged subsequently belatedly and this delay has not been explained. The trial court has rightly observed that it did not stand to reason as to why First Information Report of Nanhe-Ex.Ka.1 was not lodged at P.S.-Tikaitnagar, if First Information Report of a murder case could be lodged there and there was absolutely no reason for Nanhey to go to Police Station-Kotwali and get his version registered there that too at 11:45 P.M. Prosecution had failed to explain this aspect of the matter. The trial court opined that the delay in lodging the F.I.R. clearly indicated that prosecution in this case and particularly, Nanhey had something to conceal and therefore, he took time to prepare the case to lodge it whereas the cross-case was registered at Police Station-Tikaitnagar earlier in the day at 5 P.M. The trial court has accordingly doubted the genuineness of prosecution case. The delay in lodging the F.I.R., according to it, had damaged the prosecution case.
We are also of the opinion that if the incident as alleged by the prosecution side in this case had taken place at 1:00 P.M. i.e. prior to the incident alleged by defence side, which according to them, had taken place at 2:30 P.M. then there was absolutely no reason as to why the F.I.R. could not have been lodged at P.S. Tikaitnagar within a reasonable time. Therefore, it does create a doubt about the prosecution story in this case and we do not find any infirmity in the finding of the trial court on this count.
The trial court has also considered the oral evidence led by the prosecution and has disbelieved the same. The trial court has noticed that the statement of prosecution witnesses that they were five of them and, accused, who were nine in number armed with lathis, except one of them, namely, Mahadeo who had a Kanta, started beating the five brothers. Lathis and sickles were wielded in self-defence. Vishram, Shiv Narain and Marji Ram received injuries on the side of the accused, according to the witness, Raghunath. The accused ran away after witnesses reached the scene of incident. Thereafter, injured were taken to Sadar Hospital, Barabanki and F.I.R. (Ex.Ka.1) was lodged at Thana Kotwali, Barabanki. The trial court found that evidence of these witnesses suffered from several infirmities. It noticed that their deposition showed all the accused had weapons. These were Lathis and Kanta. A fight ensued wherein both the sides received injuries. According to prosecution witnesses-Raghunath and Nanhey, Hanuman and Raghunath had sickles and rest had lathis i.e. the informant side. The trial court has opined that it is not possible to believe that sickles could be used in a fight between two parties where lathis and Kanta blows were being exchanged. Sickles could only be used in a close fight where the parties were not armed with weapons of the nature discussed hereinabove. The trial court noticed that port-mortem report of Marji Ram-deceased did not support the use of sickles in self-defence. It opined that Marji Ram-deceased from the accused side received fourteen injuries, these injuries were of various nature, lacerated, penetrating, abrasions and incised wounds. Penetrating and incised wounds indicated that sharp pointed and sharp edged weapons were used by the defence side herein. Sickles could not be used for the said purpose as they could be effective only in a short range fight. Secondly, two sickles could not cause different nature of injuries on the body of deceased, namely, punctured and incised wounds. It has opined that the nature of injuries on the body of the deceased clearly indicated that the version of prosecution witnesses in this case regarding weapons used at the time of clash was false. Story of prosecution witnesses, namely, Raghunath and Nanhey that they had only sickles and lathis at the time of occurrence could not be accepted for the simple reason that sickles could not have caused such injuries under the circumstances. It opined that lathis in the hands of remaining three brothers on the side of prosecution could not have caused those incise and punctured wounds. The trial court disbelieved the testimony of Raghunath and Nanhey.
The trial court opined that considering the fact that fourteen injuries were found on the body of Marji Ram-deceased these were indicative of the fact that he was done to death at leisure, meaning thereby, that infliction of so many injuries and their nature require use of sufficient time and could not have been inflicted in private defence but only as an aggressor. The trial court has noticed that testimony of Raghunath and Nanhey to the effect that after the fight started, on an alarm being raised, witnesses reached the scene of crime and the accused took to their heels immediately thereafter, meaning thereby, the accused did not stay there when the witnesses reached the spot. The trial court has opined that fourteen injuries on the body of Marji Ram-deceased could not have been caused in such circumstances, especially as, there are other persons also on Marji Ram's side and many of whom received injuries. The prosecution version thus, according to the trial court, appeared to be false looking into number and nature of injuries. The trial court has also opined that looking into the injuries on side of the accused which are admitted to the prosecution witnesses, it clearly showed that if the accused had waylaid, Nanhey and his brothers, then, the fight could not have resulted in death of Marji Ram. Accordingly, the trial court has disbelieved the prosecution story that the accused were the aggressors and opined that prosecution witnesses have concealed true facts and have concocted a story to suit their convenience that is why the F.I.R. was lodged belatedly. The trial court also opined that the accused side suffered more than the prosecution side. One of the accused, namely, Marji Ram died.
It also considered documents filed as evidence pertaining to the cross case to opine that the cross-case was investigated immediately after its registration at Police Station-Tikait Nagar. Blood was recovered from the scene of crime as shown in the site-plan. It opined that had the place of occurrence been as was suggested by the prosecution in this case then naturally, blood would have been there and the Investigating Officer would have also found it. No blood was found at the place alleged by the prosecution witness, namely, Raghunath and Nanhey. Accordingly, it found the prosecution story untrustworthy based on discussion of the facts and evidence, it opined that prosecution had failed to establish that the accused committed the crime as alleged. The scene of crime as alleged by accused in cross case was established which appeared to be more logical and probable. The accused in this case had justification to cause injuries on the injured persons of this case. Murder of Marji Ram on the side of accused clearly took away any justification of prosecution case stated by the witness Nanhey and Raghunath. The version set forth by them, accordingly, has been rejected by the trial court.
On consideration of the facts and evidence before us, we do not find any infirmity or perversity in the judgment of the trial court as discussed hereinabove nor that the view taken by it is not a possible view, so as to warrant interference under Section 378 Cr.P.C. Considering the facts of the case, the injuries on the body of the prosecution witnesses were possible in view of the fight which ensued as it is the defence version also that they wielded lathi etc in their private defence on being attacked by the informant side. It is not out of place to mention that in the connected appeal arising out of the F.I.R. lodged by the alleged accused herein, the informant side in this case, have been found to be guilty of the offence of murder of Marji Ram and also of other offences etc. They have been found to be the aggressors. It appears to be so from the facts and evidence in this case also as has already been discussed by the trial court. The delay in lodging F.I.R. that too not at the police station where the jurisdiction lay but at Thana-Kotwali is inexplicable and creates a serious doubt on the entire prosecution story. The scene of crime alleged is itself doubtful. The oral evidence adduced by the prosecution has rightly been discarded by the trial court.
Defence herein has taken the plea of private defence as is evident from the statements under Section 313 of the Cr.P.C. of Shiv Narain who himself was injured in the fight and received seventeen injuries and same appears to be possible and plausible in the facts of the case. As this is an appeal against a judgment of acquittal, therefore, in view of the facts and records discussed hereinabove, we are not inclined to interfere in the matter. As already stated, injuries on the body of informant side are explained by the fact that the alleged accused defended themselves in the fight and in this process may have caused these injuries. The appeal as against acquittal of respondent nos.1, 2 and 7 is accordingly dismissed.
(Mrs. Saroj Yadav,J.) (Rajan Roy,J.)
Order Date :- 06.05.2022
Shanu/-