Allahabad High Court
State vs Durga Prasad And Others on 12 September, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD 1 A.F.R Court No. - 42 Reserved on 01.08.2022 Delivered on 12.09.2022 Case :- GOVERNMENT APPEAL No. - 2450 of 1986 Appellant :- State Respondent :- Durga Prasad And Others Counsel for Appellant :- A.G.A. Counsel for Respondent :- I.M.Khan,A.B.L. Gaur,Madhukar Maurya,Rahul Mishra,Sandeep Kumar Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
(Per Hon'ble Vikas Budhwar,J.)
1. Challenge in this appeal u/s 378 of code of Criminal Procedure 1973 (hereinafter referred to as Cr.P.C.) is made to the judgment and order dated 03.06.1986 passed by Additional Sessions Judge, Fatehpur in Sessions Trial No. 211/1983 (State Vs. Durga Prasad and Others) u/s 147, 304/149, 323/149 IPC, P.S. Ghazipur, District Fatehpur acquitting the accused herein.
2. This appeal was initially filed while arraying as many as seven accused-respondents. However, the accused-respondents nos. 1, 2 and 4 during the pendency of the present appeal expired. Accordingly, the present appeal stood abated against the accused-respondents nos. 1, 2 and 4.
3. Factual matrix of the case so interwoven in the present appeal centres around with an allegation that a written report/complaint was submitted on 10.07.1982 by the first informant being Rajendra Prasad S/o Chandra Bhushan Prasad R/o Village Kewai, P.S. Ghazipur, District Fatehpur before the Police Station Ghazipur, District Fatehpur with an allegation that the accused herein who were seven in number at the time of the filing of the appeal had committed offences at 12 in the noon on 10.07.1982 when the first informant being Rajendra Prasad along with his brother Virendra had gone along with the cattle in the agriculture field which was owned by them near the tube well in Kolanhar. Agriculture crop being paddy was cultivated and the same was in matured condition. However, at 05:00 in the evening on the fateful day i.e. 10.07.1982 the accused-respondent no. 5 Prem Narayan S/o Mishri Lal who was grazing his cattle trenched in the agricultural field along with cattle and trampled the paddy and the sugar cane crop so present therein causing destruction. Protest was sought to be made by the first informant Rajendra, however, the same was not liked by the accused Prem Narayan and he hurled abuses upon the first informant. From there the first informant along with his cattle straight away went to the house of the Prem Narayan raising protest. Prosecution further alleges that the said protest was not accepted however, rather to the contrary at that point of time Durga Prasad S/o Kali Charan, Mishri Lal S/o Durga Prasad committed the role of extortion while instigating the accused Dhunnu, Jagat Narayan and Prem Narayan and in turn they instigated the brother Ram Kumar and nephew Santosh Kumar S/o Mewa Lal. Thereafter, all the accused aided with wooden stick chased the first informant Rajendra Prasad and the first informant run away and when he reached near the main gate of the house of Jiya Lal then the accused gave a blow with the wooden stick upon the first informant and witnessing the same the elder brother of the first informant Bajrang Prasad and his father Chandra Bhushan came forward to rescue the first informant, however they were also administered blow with the aid of wooden stick pursuant whereto they fell down and witnessing the said incident Ram Lal Tiwari S/o Devi Lal and Bishun Dayal S/o Bhikuyuwa and Lakhan S/o Devi Lal came to rescue however, on account of the onslaught of administering wooden stick, the father of the first informant Chandra Bhusan became unconscious and so much so the first informant Rajendra and his elder brother Bajrang Prasad also sustained injuries and thereafter they took their father Chandra Bhushan in a bullock cart to the police station for lodging of written complaint.
4. On the basis of the written complaint so submitted by the first informant Rajendera Prasad FIR was lodged on 10.07.1982 at 21:20 hours against the accused herein u/s 147/308/323 IPC. The injured was sent to District Hospital, Fatehpur. The first informant being Rajendra Prasad and his brother Bajrang and father Chandra Bhuhan were medically examined by Dr. V.K. Tripathi, Medical Officer who was on duty at 02:30 am and 02:40 am on 11.07.1982. According to the prosecution Chandra Bhushan who happened to be the father of the fist informant, who was in unconscious situation was admitted in the hospital where he succumbed to injuries at 03:45 am on 11.07.1982.
5. Prosecution alleges that after the death of Chandra Bhushan G.D. Ex. Ka-10 was entered and the Sub-Inspector was deputed for completing the formalities for inquest and accordingly, Panchayatnama was prepared. The dead body of the deceased was sent for postmortem which was put to scrutiny by Dr. U.S. Tiwari, who conducted the postmortem on 11.07.1982 at 05:50 in the evening. As Chandra Bhushan died so the penal section which found its presence in FIR so lodged by the first informant on 10.07.1982 at 21:20 hours was transformed into section 147/304/323 IPC.
6. One S.I. Sri Ram Dayal Singh was nominated as the Investigating Officer who claims to have recorded the statement of prosecution witnesses. I.O. Sri Ram Dayal Singh after recording the statements of the prosecution witnesses and also completing the formalities which are to be conducted during the course of investigation submitted charge sheet u/s 147, 304, 149 and 323 IPC.
7. The case was committed to Sessions.
8. Charges were read over to the accused. Accused pleaded non-guilty and claimed to be tried.
9. The prosecution in order to bring home the charges the following prosecution witnesses were produced:-
1.
Rajendra Prasad P.W. 1
2. Bajrang Prasad P.W. 2
3. Ram Lal P.W. 3
4. S.I. Ram Dayal Singh P.W. 4
10. The defence in order to substantiate its stand has submitted various documents being:-
1.
Copy of the affidavit of Bajrang Prasad filed in connection with bail application
2. Order of S.D.M. dated 16.03.1982 in case u/s 107, 116 Cr.P.C.
3. Chalani Report against Chandra Bhushan, Bajrang Prasad, Ram Gopal, Ram Lal
4. Copy of Surety Bond
5. Ex.Kha 7, Copy of order of corss case u/s 107 Cr.P.C.
6. Ex. Kha 8, Copy of Chalani Report
7. Ex. Kha 9, State of Mewa Lal
8. Ex. Kha 10, Copy of the Order
9. Ex. Kha 11, Mark Sheet of High School Examination
11. The learned trial court by virtue of judgment and the order under challenge has acquitted the accused herein.
12. Challenging the same, now the State of U.P. is before this Court in the proceedings purported to be u/s 378 of the Cr.P.C.
13. We have heard Sri Indra Pal Singh Rajpoot, learned A.G.A. for the State-appellant and Sri Madhukar Maurya, learned counsel for the surviving accused respondent nos. 3, 5, 6 and 7.
14. Sri Indra Pal Singh Rajpoot, learned A.G.A. in support of the appeal has made manifold submissions namely:-
(a). The learned trial court has committed manifest illegality in acquitting the accused herein while completely misreading the evidence available on record as the present case was a case wherein there was a prompt FIR, disclosing offences committed by the accused herein as they had been specifically marked in the FIR assigning roles.
(b). The prosecution witnesses has supported the occurrence of the incident that too by the accused and there was ample evidence available on record so as to pointedly mark the accused to have committed the crime.
(c). There was clear cut motive attributed upon the accused herein for commission of crime which itself was catalyst for doing the acts which not only injured the P.W. 1 and P.W. 2 but also took the life of their father Chandra Bhushan, the deceased.
(d). Merely because, there are minor contradictions in the statements of the prosecution witnesses the same could be a ground to acquit the accused herein once the other factors consistently proves that the accused had committed the crime.
15. Sri Madhukar Maurya, learned counsel for the surviving accused respondents has made the following submissions:-
(a). FIR in question is anti-timed and the accused have been falsely roped in in the present criminal case.
(b). No specific role has been assigned in the FIR but as an after thought different role has been assigned for commission of crime by the accused which is nothing but a case of improvement.
(c). There are material contradictions in the statement of the prosecution witnesses which itself demolishes the prosecution theory.
(d). There was no such motive which could be the basis for commission of the crime as alleged by the prosecution.
(e). Judgment and the order of acquittal is based upon correct appreciation of the prosecution testimony and evidences so adduced which does not need any interference at the stage.
16. Before embarking upon the validity and the legality of the judgment and the order of acquittal passed by the learned trial court, this Court is to bear in mind the fact that this Court is occasioned to deal with the judgment and the order of acquittal in an appellate jurisdiction that to under section 378 of Cr.P.C. To put it otherwise, there are certain limitations which have to be noticed and kept in mind that while exercising appellate jurisdiction, as this Court while exercising appellate jurisdiction can only interfere and grant indulgence in the judgment and the order of acquittal when it is palpably perverse, there has been complete misreading of the evidences so sought to be adduced and it proceeds towards a wrong directions so as to indicate that the view taken by the learned trial court is a view which cannot be perceived by a prudent person. The reasons for interfering in the judgment of acquittal should be compelling and substantive in order to prevent miscarriage of justice through the parties.
17. The Hon'ble Apex Court in the recent judgment in the case of Criminal Appeal No (S). 410-411/2015 (Ravi Sharma Vs. State (Government of N.C.T. of Delhi) & Anr.) decided on 11.07.2022 in paragraph nos. 8 and 9 has held as under:-
"8. Before venturing into the merits of the case, we would like to reiterate the scope of Section 378 of the Code of Criminal Procedure (for short ''Cr.P.C.') while deciding an appeal by the High Court, as the position of law is rather settled. We would like to quote the relevant portion of a recent judgment of this Court in Jafarudheen and Others v. State of Kerala (2022 SCC Online SC 495) as follows:
25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.
9. This Court in the aforesaid judgment has noted the following decision while laying down the law:
Precedents:
Mohan alias Srinivas alias Seena alias Tailor Seena v. State of Karnataka, [2021 SCC OnLine SC 1233] as hereunder:
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity, nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.
23. This court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal under Section 378 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166:
14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: [Babu v. State of Kerala, [(2010) 9 SCC 189]:
"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635], Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501], Aruvelu v. State, [(2009) 10 SCC 206] and Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636])." It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse, and the findings would not be interfered with.
14.3. In the recent decision of Vijay Mohan Singh v. State of Karnataka, [(2019) 5 SCC 436], this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai v. State of Gujarat, [(1978) 1 SCC 228]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under:
''10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.' 31.1. In Sambasivan v. State of Kerala, [(1998) 5 SCC 412], the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under:
''8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well- considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.' 31.2. In K. Ramakrishnan Unnithan v. State of Kerala, [(1999) 3 SCC 309], after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley v. State of U.P., [AIR 1955 SC 807], in para 5, this Court observed and held as under:
''5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [1951 SCC 1207]; Wilayat Khan v. State of U.P. [1951 SCC 898]. In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.' 31.4. In K. Gopal Reddy v. State of A.P., [(1979) 1 SCC 355], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule." N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as hereunder:-- "20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, [(2007) 4 SCC 415] has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
21. Further in the judgment in Murugesan v. State, [(2012) 10 SCC 383] relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal to that of the conviction.
xxx xxx xxx
23. Further, in Hakeem Khan v. State of M.P., [(2017) 5 SCC 719] this Court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the "possible view" of the trial court is not agreeable for the High Court, even then such "possible view" recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under; (SCC pp.722-23) "9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place."
24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till 7.00 p.m."
18. In the light with the aforesaid proposition of law so culled out by the Hon'ble Apex Court now the present case is to be addressed.
19. The ocular testimony of the prosecution witnesses is to be analysed.
20. As P.W. 1, the first informant being Rajendra Prasad entered into the witness box, according to him he recognizes all the accused. He in his statement has deposed that he along with his younger brother Virendra had gone to his agriculture field to graze the cattle at 12 in the noon on 10.07.1982 which is near tube well where at the crop of paddy was existing and at that point of time accused Prem Narayan along with his cattle came into the agricultural field of the first informant and when the first informant raised his protest then he abused the first informant. Occasioning the said situation, the first informant came back from the field and straight away went to the house of the accused Mishri Lal and raised his complaint. He has further stated that behind him the accused Prem Narayan also came along with his cattle and when he was complaining about the same in the house of the Prem Narayan then the accused Durga Prasad indulged into extortion while telling his son and the other accused that the first informant be put to administration of beating. When the accused aided with wooden stick ran to inflict blow upon the first informant and he came just near the gate of the house of Jiya Lal whereat the aforesaid accused assembled together and inflicted blow upon the first informant and witnessing the same his father Chandra Bhushan Prasad and brother Bajrang Prasad also came and at that point of time the accused administered beating upon them and Sri Durga Prasad also inflicted a blow with the wooden stick upon him. He further deposed that on account of blow of wooden stick so sought to be resorted to by the accused all three of them sustained injuries and Ram Lakhan and Vishnu Dayal witnessed the same. In nutshell P.W. 1 supported the prosecution version.
21. One Bajrang Prasad appeared as P.W. 2 and according to him on the fateful day i.e. 10.07.1982 his brother Rajendra and Virendra had gone to graze the cattle where at Prem Narayan hurled abuses and thereafter, he witnessed that his brother Rajendra was inflicted blow by wooden stick by the accused and when he and his father Chandra Bhushan requested not to do the said act then they were also administered beating. He claims to have sustained injuries.
22. P.W. 3 Ram Lal also appeared as a prosecution witness according to him he witnessed the incident which occurred on 10.07.1982. According to him Chandra Bhushan was administered beating by accused Mishri Lal, Dhunnu Lal and Bajrang was administered beating by Ram Kumar. He has also supported the prosecution version.
23. S.I. Ram Dayal Singh appeared as P.W. 4 he claims to be the Investigating Officer who had taken statement and submitted charge sheet.
24. So far as the injuries is concerned, there are three injured namely P.W. 1 Rajendra Prasad, P.W. 2 Bajrang Prasad and the deceased Chandra Bhushan.
25. P.W. 1 Rajendra Prasad was medically examined on 11.07.1982 at 02:40 am and according to the doctor who has examined him and all the injuries were found to be simple instead of injury no. 1 which was kept on observation and x-ray was advised. Similarly, so far as the injury of Bajrang Prasad, P.W. 2 is concerned he was also put to medico legal examination on 11.07.1982 at 02:30 am wherein the injuries were cause by blunt object and the same was fresh as injury no. 1 was found to be simple, injury no. 2, 3 were advised for X-ray.
26. As regards Chandra Bhushan is concerned, he is stated to have sustained injuries pursuant where to he became unconscious but he succumbed to the injury and on 11.07.1982 at 05:50 hours, the postmortem was conducted wherein the cause of death was shock and haemorrhage due to injuries.
27. Undisputedly, the FIR has been lodged by the first informant Rajendra on 10.07.1982 at 21:20 hours against the accused herein claiming himself to be the witness of the incident which occurred in the agricultural field and also near the house of Mishri Lal and Jiya Lal. In the FIR though the accused have been marked while committing offence but no specific role what so ever has been assigned to them. In the FIR it has also been recited that after the receiving of the injuries at the hands of the accused herein the first informant being Rajendra along with his brother Bajrang and the deceased Chandra Bhushan proceeded in a bullock cart towards the police station and the FIR was got lodged. P.W. 1 in his cross-examination has stated that he had got written complaint/report in his house and after writing the entire written complaint he proceeded from his own house and neither in the transit from the house till the police station he did not add anything and he on being specifically asked he had specifically deposed that he had written the written complaint in the house that he took his deceased father in bullock cart. He has further deposed in paragraph no. 18 that he has not written complaint in the police station that to after consulting. He further deposed that he along with Vidya Sagar S/o Ram Gopal had gone to the police station.
28. As a matter of fact it is quite paradoxical and amazing that even on the suggestion the P.W. 1 Rajendra Prasad who happens to be the first informant had stated that he was in his house and he wrote/got prepared the written complaint and he did not add or write anything in the written complaint in his transit that from the house till the police station then to how could a person imagine certain events which is yet to be occurred practically when he is in the house and he is writing something regarding going by bullock cart once he has not commenced his journey. The aforesaid fact itself shows that the prosecution theory is under cloud. The issue also assumes more significance particularly when no role had been assigned in the FIR regarding commission of crime by the accused who are seven in number however, subsequently improvement has been sought to be made at a later stage so as to assign specific role once the first informant is nobody but an eye witness who even in fact was present when the incident took place whereby he and his father and brother were subjected to blow by wooden stick by the accused herein.
29. More so, P.W. 2, Bajrang Prasad who happens to be the son of the deceased and real brother of Rajendra Prasad and also an eye witness of the incident in para 3 has further stated that the accused Mishri Lal and Dhunnu Lal had inflicted blow with wooden stick however, the injury report of Chandra Bhushan dated 11.07.1982 at 02:30 am itself shows that single injury was sustained by the deceased. Meaning thereby that the prosecution theory also stands exploded as there is no justification as to why one injury is being sought to be found when two accused with two wooden sticks had inflicted blow upon the deceased and he became unconscious and fell down. The said aspect also assumes significance once the FIR is completely silent about the specific role assigned in that regard.
30. So far as the involvement of the accused Durga Prasad in commission of the crime in question is concerned P.W. 1 Rajendra Prasad in his cross examination in paragraph no. 5 has himself stated that Durga Prasad at the time of the incident was 70-75 years and he was quite old and weak. Once the said fact has himself been spelt out by the P.W. 1 who happens to be an eye witness then in presence of his son and grand son there was no occasion for Durga Prasad to have inflicted injury by wooden stick himself as it is not expected that a person being 70-75 years would run and chase P.W. 1 Rajendra who is stated to have being chased by the accused from the house of the accused Mishri Lal near the gate of the house of Jiya Lal.
31. Similarly, this Court is to also analyse another aspect of the matter that P.W. 1 Rajendra and P.W. 2 Brijendra Prasad both are real bothers and thus, only person who is not of the family is P.W. 3 who happens to be Sri Ram Lal and according to him he was in his house when he heard noises then he came near the door of Jiya Lal wherein he was occasioned to witness to said incident. However, according to his statement he was near his field irrigating the paddy crop and he came back after finishing the irrigation work at 04:00 or 04:30 in the evening and after fifteen minutes he heard certain noises. Remarkably, he had not disclose the said fact to the Investigating Officer that he had come from his house to the place of occurrence though he stands and supports the fact that he has come from tube well at 04:30 pm and he also did not inform the family members of the P.W. 1 regarding grazing of the field by the accused Prem Narayan.
32. So far as P.W. 3 is concerned, he happens to be an interested witness having its tilt towards the complainant fraction as he had been administered threatening by accused Mishri Lal a week ago that he should not appear as a witness in some case. The conduct of the P.W. 3 itself marks importance particularly when he has himself in his cross examination denied the fact he has filed an affidavit in the bail application but conversely, he had stated that he did not know as to how and under what circumstances he had signed the affidavit. The said fact also assumes significant once the affidavit is to be sworn before an oath commissioner. More so the entire testimony of the P.W. 3 does not inspire confidence particularly when he comes up with a stand that he heard the instigation of the accused and he immediately rushed as the same also does not finds its presence in the statement u/s 161 Cr.P.C.
33. More so, P.W. 2 Bajrang Prasad in his statement has deposed that the field of Ram Lal is not near the tube well or on the way of the village then how P.W. 3 Ram Lal could see the origin of the dispute.
34. It has also come on record as per the statement of P.W. 1 Rajendra Prasad that the accused Prem Narayan along with his cattle had entered into the agriculture field and destroyed paddy and other crops and he remained there for at about one hour. The first informant along with his brother were already present over there and Prem Narayan was shown to be all alone with the cattle then it becomes highly unbelievable that the first informant and his brother Virendra will allow the accused to graze the cattle and destroy the crops which is the source of livelihood. It is also not a case wherein the accused happened to be a very strong person having good built as P.W. 1 Rajendra Prasad has himself in his statement deposed that he did not put resistance as abuses were hurled and he was aged about 18-19/16-17 years. The said conduct of the P.W. 1 Rajendra Prasad itself does not inspire confidence as the accused was single as well as the first informant was with his brother in that regard.
35. Even P.W. 4 who happens to be the Investigating Officer being S.I. Ram Dayal has stated that in his deposition that he was assigned the Investigation on 11.07.1982 and he took the statement of Constable Prem Chandra on the said date and on 13.07.1982 he took the statement of Ram Lal, Bishun Dayal, Lakhan and on 21.07.1982 he had gone to the place of occurrence and took the statement of Bajrang Prasad and prepared the site plan and on 01.08.1982 he took the statement of P.W. 1, Rajendra Prasad for the purposes of identification of place of occurrence and he got information on 13.07.1982 regarding the death of Chandra Bhushan. He has specifically deposed in paragraph no. 10 of his statement that he had not taken the blood stained earth on 11.07.1982. He further could not justify in his statement as to why he did not take the statement of the injured (deceased). P.W. 4 has further stated that he has not taken the samples of blood stained earth. Further in paragraph no. 11 of the statement of P.W. 4 it has been deposed that the I.O. had not gone to the field in order to determine the fact as to whether the crops were destroyed while grazing by the accused or not. The aforesaid stand taken by the Investigating Officer coupled with the fact that there is a serious cloud over the incident which occurred in the agricultural field generating the commission of the alleged offence does not link the accused to have committed offence.
36. Notably in the case of Lakshmi Singh And Others Vs. State of Bihar (1976) 4 SCC 394 the Hon'ble Apex Court had the occasion to deal with the issue where at there was a failure to send blood stained earth for chemical examination and the Hon'ble Apex Court in paragraph no. 14 has observed as under:-
"14. To add to this another important circumstances is the omission on the part of the prosecution to send the bloodstained earth found at the place of occurrence for chemical examination which could have fixed the situs of the assault. In almost all criminal cases, the bloodstained earth found from the place of occurrence is invariably sent to the Chemical Examiner and his report along with the earth is produced in the Court, and yet this is one exceptional case where this procedure was departed from for reasons best known to the prosecution. This also, therefore, shows that the defence version may be true. It is well settled that it is not necessary for the defence to prove its case with the same rigour as the prosecution is required to prove its case, and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case which is sufficient to enable the Court to reject the prosecution version."
37. Motive can be also one of the factors for commission of crime however, here in the present case the learned trial court has gone into the said aspect of the matter while recording the categorical finding that though the motive is stated to begun in the agriculture field but the fact that the Phool Chand Pradhan had defeated Ram Gopal is also to be taken note off though it had been denied by the accused herein that they had supported Phool Chand with whom the deceased had inimical terms. Though it has been proved from the documents filed by the defence that proceedings were under gone under section 107 Cr.P.C. between Phool Chand and Prahalad in which Ram Kumar and Mewa Lal stood as securities and Mewa Lal has also appeared as a witness against Chandra Bhushan for Ram Pratap and Phool Chand. Thus, there was an enmity between the parties and election took place only three days before the incident and the Vidyasagar the son of defeated Pradhan had taken P.W. 1 Rajendra Prasad to lodge FIR at Police Station.
38. Moreover, this Court finds that though on one hand motive is being sought to be assigned as a basis for commission of the crime but non implication of the Pradhan itself creates a suspicion and cloud over the prosecution theory as the basis of commission of crime was also the rivalry pertaining to the offence of Pradhan. The said aspect also makes its relevance particularly when there is also cloud over the fact that as to whether on account of grazing of agricultural field of the complainant fraction the genesis of the dispute got generated as even P.W. 4 as per his statement had not visited the place of occurrence relating to grazing of the agricultural field that to at the end of the accused fraction.
39. Notably, enmity is a two sided dragger and one of the basis of commission of crime being the motive but the prosecution if, is taking aid of the device of motive, has to prove it beyond doubt so as to give the opportunity to the defence to despell the same.
40. Nonetheless, it has come in the statement of P.W. 1 Rajendra Prasad that he was admitted in hospital for 7-8 days and the statement of Rajendra Prasad was taken by the Investigating Officer after 20-21 days meaning thereby, by all probabilities a story was being sought to be cooked up for implicating the accused herein as it is not a case that the P.W. 1 Rajendra Prasad was seriously ill or in unconscious condition and also not in a position to give statement. P.W. 1 Rajendra Prasad further in his statement in paragraph no. 11 has stated that besides Ram Lal and Ram Lakhan there was no other person in the nearby houses who could witness the same, however, women folk were there who did not come out side.
41. The Hon'ble Apex Court in the case of Maruti Rama Naik Vs. State of Maharashtra reported in (2003) 10 SCC 670 in paragraph no. 7 has observed as under:-
"We will now consider whether the evidence of PW-4 in any manner corroborates the evidence of PW-3 or for that matter the said evidence of PW-4 is acceptable at all. PW-4 has admitted that he is a close relative of deceased Krishna Mahada Naik. While he had noticed the incident of the attack on the deceased Krishna Mahada Naik, he has not spoken in any manner about the subsequent attack which includes the attack on PW-3. According to this witness, at the relevant time, he was going to the bus-stand to board a bus to reach his factory where he was working when he saw the assault on the deceased Krishna Mahada Naik by the assailants including the appellants. Having noticed the incident, he did not go to any one of his relatives' house to inform about the attack in question. He knew at that point of time that Krishna Mahada Naik was injured and still alive, still he did not make any effort whatsoever to get any help to shift the injured to a hospital. According to this witness, even after seeing Krishna Mahada Naik lying injured in a critical condition, he without informing anybody about the incident, went to the bus-stand, took a bus and went to his factory and even at that point of time, he had sufficient opportunity to inform the other people about the incident or for that matter, even the Police which he did not do. It is interesting to note from the evidence of this witness that even though he had an opportunity of approaching the police, he did go to them because he did not know whom he had to inform about the incident in the Police Station. The witness further states that he went to the factory, worked for a while, took leave from the factory and went back home. Even after reaching home, he did not bother to find out from anybody there about the fate of the victims nor did he inform anybody about he having witnessed the incident. It is only at about 6 p.m. when PW-21 recorded the statement for the first time, he came out with the fact of having witnessed the incident. It is rather surprising as to how and in what manner, PW-21 came to know that PW-4 was a witness to the incident. The prosecution has also failed to explain the delay in recording the statement of this witness, therefore, bearing in mind the conduct of PW-4 in not informing anybody about his having witnessed the incident and the delay in recording his statement makes us hesitant to place any reliance on his evidence. The only other piece of evidence relied by the prosecution to support its case against these two appellants is that of recovery which even according to prosecution, was made from a place which was not in the exclusive possession of the appellants and the said place was easily accessible by other people and also the fact that recovery was made almost 9 days after the incident in question, in our opinion, this piece of evidence also would not at all be sufficient to base a conviction of these appellants without further acceptable corroboration. Therefore, we are of the opinion that these appeals must succeed. The conviction and sentence imposed on the appellants are set aside and the appeals are allowed."
42. Further in the case of Jagjit Singh Alias Jagga Vs. State of Punjab reported in (2005) 3 SCC 689 the Hon'ble Supreme Court in paragraph no. 30 has observed as under:-
"30. This has to be viewed in the light of the fact that her statement was recorded by the Investigating Officer for the first time three days after the occurrence, and her statement was recorded by the Judicial Magistrate six days after the occurrence. The courts below have taken the view that delay in examining her has caused no prejudice to the defence. Counsel for the appellant, submitted that this period was utilized by the prosecution for tutoring the witness, and therefore the delay of three days in her examination under Section 161 Cr. P.C. is significant No explanation is forthcoming as to why she was not examined for three days when the Investigating Office knew that a statement of her's had been recorded by the doctor on 30th August, 1996. The Trial Court took the view that since she was under a shock she was not in a position to make a statement and, therefore, her statement was recorded later. This is clearly erroneous because the case of the prosecution is that she regained consciousness on 30th August, 1996 and, thereafter, she was fully conscious. The evidence of Dr. Bhupinder Singh, PW-7 who gave a certificate of her fitness to make a statement is also to the same effect. The reasoning of the Trial Court that the victim, PW-6, was under a great shock and was not in a position to make the statement, cannot be sustained. Neither the Trial Court nor the High Court cared to closely examine the evidence on record to find out whether there was any evidence on record to prove that the appellant was known to PW-6 or that PW-6 had any reason to know his name so as to be able to identify him by name. The explanation furnished by PW-6 five years after the occurrence, that she knew the appellant because he happened to be the son of Amar Singh at whose tune well her grandparents resided, is unacceptable particularly, in view of the fact that there is no evidence to establish that she had ever earlier seen the appellant and in none of the three statements made by her earlier the name of Amar Singh is mentioned. The delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her late examination after three days, when admittedly she was the sole eye witness who was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnessed the occurrence, she did not know the appellant by name as she had no opportunity of knowing or seeing him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ex.PW-6/A was being recorded."
43. Yet in the case of V.K. Mishra And Another Vs. State of Uttrakhand And Another reported in (2015) 9 SCC 588 the Hon'ble Apex Court in paragraph no. 26 has observed as under:-
"26. It cannot be held as a rule of universal application that the testimony of a witness becomes unreliable merely because there is delay in examination of a particular witness. In Sunil Kumar & Anr. vs. State of Rajasthan, (2005) 9 SCC 283; it was held that the question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a core of witness to falsely support the prosecution case."
44. Though, merely because there has been delay in recording the statement of the prosecution witnesses by the Investigating Officer does not ipso facto renders it to be fatal to the prosecution case but there has to be an explanation so as to suggest as to what was the reasons occasioned in delay in recording the statement of the prosecution witnesses. This Court finds that the present case at hand P.W. 4 had the due opportunity to get recorded the statements of the prosecution witness so as to eliminate the chances of any soliciting or tutoring but there was no reason assigned for delay in recording the statement of the prosecution witness.
45. The learned court had also taken pains so as to determine the fact as to what time the deceased died while taken clue from the postmortem report wherein the food so found from the body of the deceased was in semi digested condition. According to learned trial court as per the testimony of the prosecution witness the meal was taken in their house in day time at 12 in the noon and postmortem of the deceased was conducted at 05:50 in the evening and thus, by that time the normal meal which is taken by average villager gets digested thus the FIR in question was sought to be shown an anti time FIR while referring to the often relied books which relatable to medical jurisprudence in this regard.
46. The Hon'ble Apex Court in the case of Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra reported in (1973) 2 SCC 793 in paragraph no. 11 has observed as under:-
"That Hariba died of violence on 26th September, 1966, is indubitable, but who did him to death is a moot point. The lethal attack is alleged to have been made on a cart-.track lying between the two villages, Bibi and Ghadgewali in the afternoon on a bazaar day in the former village when people must evidently have been moving about. The macabre story of an old man, Hariba, being killed on a road near village Bibi around 5-30 p.m. by two known persons, Shivaji and Lalasaheb was recounted by one Balakrishna (P.W. 2) before the Police Patial (P. W. 15) in less than an hour of the incident (vide Ex. 8 and Ex. 36). Thus, the first information has been laid promptly, if we assume the hour of death to have been correctly stated there. Ext. 8 does mention briefly the material facts and the crucial witnesses in what may be treated as a hurriedly drawn up embryonic document. The contention of counsel for the respondents before us, which has received judicial reinforcement by acceptance by the Sessions Judge, is that this first information is an ersatz product of many minds manupulating to make it, and the apparently short, honest interval between the occurrence and the report, to the Patil is a make-believe, the death having occurred beyond doubt at about 2-00 p.m. and not at 5-30 p.m. as the prosecution disingenously pleads. Reliance is primarily placed for this pre-clocking of the occurrence on the postmortem certificate, doctor's evidence and the medical expertise contained in Modi's Medical Jurisprudence. Admittedly, 'semi-digested solid food particles' were observed in the deceased's stomach by P.W. 4 the medical officer, and the inference sought to be too neatly drawn therefrom is that the man must have come by his end (and that the digestive process must also have come to a halt with it) 2 to 3 hours after his last lunch, which, according to P.W. 2, was at 10.00 a.m. If he did die before 2.00 p.m., everything else in the prosecution evidence became suspect, argued the court. The assurance of this assertion, however, turns on the exact accuracy, in terms of the I.S.T., of the testimony of P.W. 5 who swore that himself and the deceased had taken food on the fateful day at about 10.00 or 10.30 a.m. before setting out for Bibi. The sluggish chronometric sense of the country-side community in India is notorious since time is hardly of the essence of their slow life; and even urban folk make mistakes about 'time when no particular reason to observe and remember the hour of minor event like taking a morning meal existed. 10.30 a.m. could well have been an hour or more one way or the other and too much play on such slippery facts goes against realism so essential in a testimonial appraisal. More importantly, the court must not abandon a scientific attitude to medical science if it is not to be guilty or judicial superstition To quote Modi's Medical Jurisprudence that food would be completely digested in four to five hours or to swear by the doctor to deduce that death must have occurred within 3 hours of the eating and, therefrom, to argue that the presence of undigested food in the dead body spells the sure inference that death must have occurred before 2.00 p.m. is to mis-read the science on the subject of digestive processes. Modi's Medical Jurisprudence, extracts from which have been given by both the courts, makes out that a mixed diet of animal and vegetable foods. normally taken by Europeans, takes 4 to 5 hours for complete digestion while a vegetable diet, containing mostly farinaceous food usually consumed by Indians, does not leave the stomach completely within 6 to 7 hours after its ingestion. Indeed, the learned author cautiously adds that the stomachic contents cannot determine with precision the time of death "inasmuch as the power of digestibility may remain in abeyance for a long time in states of profound shock and coma". He also states "it must also be remembered that the process of digestion in normal healthy persons may continue for a time after death". The learned judges reminded themselves of the imponderables pointed out by Modi which makes the 'digestive' testimony inconclusive and, therefore, insufficient to contradict positive evidence, if any, about the time of death To impute exactitude to a medical statement oblivious to the variables noticed by experts and changes in dietary habits is to be unfair to the science. We are not prepared to run the judicial risk of staking the whole verdict on nebulous medical observations. Given so according to P.W. 5 deceased took tea some time after 12-30 p.m. when they started for Bibi. At that time the possibility of his having had something to eat is not ruled out. If so, the medical evidence as to the time of death will not be inconsistent with the postmortem findings.
47. In the case of Ram Narain Singh Vs. State of Punjab reported in (1975) 4 SCC 497 the Hon'ble Apex Court in paragraph no. 9 has observed as under:-
"9. This brings us to the other aspects of the case, namely, whether or not the prosecution had tried to change the time and place of occurrence, as contended by the learned counsel for the appellants. There is no direct evidence to show that the occurrence took place at 8-00 P.M. but there are certain strong circumstances which lead to the irresistible inference and an inescapable conclusion that the occurrence must have taken place at about P.M. In the first place, the informant himself has categorically stated in his evidence that he had left for the police station at 8-00 P.M. although the occurrence had taken place at 6-30 P.M. He has not given any explanation why he waited in the village for hours if he eventually decided to go to the police station alone without taking any escort. This clearly shows that the occurrence must have taken place at about 8- 00 P.M. and the time has been shifted to 6-30 P.M. Only with a view to make it appear that the occurrence took place in the house where the accused could be properly identified. Another important circumstance which supports this inference is that according to the evidence of Surjit Singh who stated at P. 41 of the High Court Paper Book that they had taken their food at village Phaphre Bhaike about an hour before the occurrence. Here he is completely belied by the medical evidence of Dr. Walia which shows that undigested food was found in the stomach of the deceased and according to him the deceased must have taken his food only five minutes before his death or at the most within half an hour of his death. Doctor's evidence therefore clearly shows that he must have taken his food at 8-00 P.M. which is also the usual time when the villagers take their food. Another important circumstance which shows that the occurrence must have taken place at 8-00 P.M. is the evidence of P.W. 15 Baggar Singh that after hearing about the occurrence he came out of his house after about four hours of the alleged firing and went to the spot about 1 1/2 hours before the police arrived. the witness states that the police arrived at the spot about 1 1/2 hours after he had gone to the spot. According to the evidence of the A.S.I. he had proceeded to the village Hassanpur at about 2-30 A.M. On October 3, 1972. This means that the witness must have reached the spot at about 1-00 A.M. This would put the occurrence at about 9-00 P.M. On October 2, 1972 as the witness stirred out of his house four hour after the occurrence. This version also belies the version of the two eye witnesses that the occurrence took place in their house at about 6-30 P.M."
48. The Hon'ble Apex Court in the case of Shivaji Sahabrao Bobade (Supra) and Ram Narain Singh (Supra) had the occasion to consider the contingency relating to the conflict between the prosecution case and medical evidence etc. in order to determine the issue relating to the time of the death of the deceased. The Hon'ble Apex Court had even gong to the issue relating to the food which the deceased ate and condition whether the same was digested, undigested or semi-digested in order to determine the actual time of the death and while considering the same, the Apex court determined the veracity of the prosecution theory.
49. Yet in the case of Sanjay Khanderao Wadane Vs. State of Maharashtra reported in (2017) 11 SCC 842 the Hon'ble Apex Court has further analysed the inconsistency or discrepancy between medical evidence and direct evidence while holding in paragraph nos. 13 and 16 as under:-
"13. A medical witness who performs a post-mortem examination is a witness of fact though he also gives an opinion on certain aspects of the case. The value of a medical witness is not merely a check upon the testimony of eyewitnesses; it is also independent testimony because it may establish certain facts quite apart from the other oral evidence. From the evidence on record, inferences are drawn as to the truth or otherwise of the prosecution case in criminal matters and truth or otherwise of a claim in civil matters. In this process, the medical evidence plays a very crucial role. If there is inconsistency or discrepancy between the medical evidence and the direct evidence or between medical evidence of two doctors, one of whom examined the injured person and the other conducted post mortem on the injured person after his death or as to the injuries, then in criminal cases, the accused is given the benefit of doubt, and let off. Where the direct testimony is found untrustworthy, conviction on the basis of medical evidence supported by other circumstantial evidence can be done, if that is trustworthy.
16. 9) The presence or absence of food at the time of post-mortem in relation to the time of death is based on various factors and circumstances such as the type and nature of the food consumed, the time of taking the meal, the age of the person concerned and power and capacity of the person to digest the food. In the present case, though PW-8 has stated that he had ''Bhel' with the deceased just before the incident, there is no evidence about the exact time when the meals were taken or the quantity of ''Bhel' consumed by the deceased. Judging the time of death from the contents of the stomach, may not always be the determinative test. It will require due corroboration from other evidence. If the prosecution is able to prove its case beyond reasonable doubt and cumulatively, the evidence of the prosecution, including the time of death, is proved beyond reasonable doubt and the same points towards the guilt of the accused, then it may not be appropriate for the court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased. Even in Modi's Jurisprudence, it has been recorded as under:
"... The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of the occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of."
50. Applying the principle of law so culled out in the case of Shivaji Sahabrao Bobade (Supra), Ram Narain Sing (Supra) and Sanjay Khanderao Wadane (Supra) in the present facts of the case this Court finds that as per the deposition of P.W. 1 Rajendra Prasad, the first informant he had deposed in paragraph no. 12 that in his house the meals are taken at about 12 in the noon and in the night by 10/11. He has specifically also deposed that in between neither any breakfast not snacks are being consumed. According to his deposition the deceased after being hit by the wooden stick became unconscious. Thus, according to the story so sought to be set up therein a normal agriculturist who lives in a village takes meal comprising of pan cakes of wheat (bread) which is in common parlance known as Chapaties along with lenten (Dal) and thus, the learned trial court came to the opinion that the said food get digested within 2/3 hours. The learned trial court has further gone to the extent that the rice gets digested within 3 to 4 hours and then came to the conclusion that by no stretch of imagination the semi digested food could be in stomach when the incident tool place at 05:00 in the evening.
51. Though, this Court would have skipped and ignored the said aspect however, while placing it as an additional factor, however, this Court from the ocular testimony of the prosecution witnesses does not finds the prosecution case to be proved beyond any reasonable doubt as in the FIR there has been no specific role assigned to the accused herein particularly when the first informant being P.W. 1 Rajendra Prasad happens to be the son of the deceased and also an eye witness. Apart from the same, in view of the categorical statement of the accused, first informant being P.W. 1 Rajendra Prasad that he had written a written complaint for lodging of the FIR in his house and he had specifically spelled out in his deposition that he had neither added or subtracted anything in the written complaint either during the transit from his house to the police station or in the police station then how could the narration of the facts while travelling in bullock cart before the journey yet to be commenced was recited in the written complaint. Additionally, the involvement Durga Prasad in the commission of the crime who is stated by the prosecution to be aged about 70-75 years chasing the P.W. 1 Rajendra Prasad and administering beating with a wooden stick despite presence of the other accused, non resistance of P.W. 1 for an hour while permitting accused Prem Narayan to graze the agricultural field and destroy the crops and further amongst other factor being last but not the least that delay in recording of the statements of the prosecution witness itself shows that the entire prosecution story is erected upon the allegations of which remains not only doubtful but they proceeds upon weak evidence.
52. We have bestowed anxious consideration over the prosecution case and the documents available on record as well as the ocular testimony and we find that learned trial court had not committed any manifest illegality in acquitting the accused as the view taken by the learned trial court is a possible and plausible view. Nonetheless, this Court further finds that the Trial Court has appreciated the evidences and has given cogent reasons in arriving to the conclusion that the prosecution could not prove the commission of the offences by the accused herein beyond doubt. Nevertheless, this Court cannot substitute the views so taken by the learned trial court once the same is not actuated by perversity.
53. Accordingly, this Court has no option but to concur with the judgment of the learned trial court.
54. Resultantly, no ground is made as to accord leave to appeal and accordingly, the same is rejected.
55. As the leave to file the present appeal stands rejected thus, the present government appeal so instituted at the behest of the State-appellant u/s 378 (3) of the Cr.P.C. stands dismissed.
56. Record of the present case be sent back to the concerned court below.
Order Date :- 12.09.2022 Nisha