Allahabad High Court
State Of U.P. vs Ishwar Chandra And Others on 19 July, 2022
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment reserved on : 21.04.2022
Judgment delivered on : 19.07.2022
Case :- GOVERNMENT APPEAL No. - 1234 of 2004
Appellant :- State of U.P.
Respondent :- Ishwar Chandra And Others
Counsel for Appellant :- Govt. Advocate
Counsel for Respondent :- Rakesh Dubey,Ajatshatru Pandey,Mohit Singh,Ramesh Kumar Shukla,Ran Dhir Singh
Hon'ble Om Prakash-VII,J.
Hon'ble Narendra Kumar Johari,J.
(By Om Prakash-VII, J.)
1. This Government Appeal has been preferred by the State-appellant against the judgment and order of acquittal dated 31.10.2003 passed by Additional Sessions Judge / Fast Track Court No.2, Bijnor in Sessions Trial No.456 of 1998, State Versus Ishwar Chandra and others, relating to Police Station Seohara, District Bijnor by which the learned trial court has acquitted all the respondents namely, Ishwar Chandra, Ram Phal Singh, Krishan Bahadur and Hari Om for the offences under sections 307/34, 302/34, 323/34, 504, 506 I.P.C.
2. At the very outset, we would like to point out that leave to appeal was granted and appeal was admitted on 31.7.2008. Pending final outcome, one of the accused-respondents namely, Ram Phal Singh expired and appeal in his respect stands abated vide order dated 16.12.2021. We therefore have to adjudicate this appeal only against surviving accused-respondent no.1, 3 and 4 namely, Ishwar Chandra, Krishan Bahadur and Hari Om.
3. Briefly narrated, prosecution allegations against respondents-accused, as mentioned in the written report (Ex. Ka.-1) given by the informant - Hemraj Singh, are that on 26.5.1998 at about 6:00 in the morning, the brother of the informant namely, Bhopal Singh son of Babu Singh had gone towards the southern direction from the village to attend the nature call. On the way, accused Ishwar Chandra son of Ram Phal Singh, Ram Phal Singh son of Moti Singh, Krishan Bahadur son of Moti Singh and Hari Om son of Krishan Bahadur, who belong to same village and were armed with lathi and tabal, surrounded the brother of the informant and with intention to kill, they started beating him. Due to this assault, brother of the informant became seriously injured. He received multiple injuries on his body. On hearing the noise, when the informant reached there to save / rescue his brother, all the four accused-persons assaulted the informant with lathi and danda, hurled abuses and threatened him with dire consequences. This incident was witnessed by the villager Brijpal Singh son of Umed Singh and Anand Kumar son of Chhotey who also tried to save the informant and his brother. There was old enmity going on between the parties. Request was made to register the case and take legal action.
4. Thereafter, a written report of the incident Ex. Ka.-1 was given at the police station concerned by the informant Hemraj Singh (P.W.1). On the basis of written report, head constable Raj Nath Singh (P.W.8) prepared chik report (Ex. Ka.-6) and registered the case as crime no.181 of 1998 under sections 307, 324, 323, 450 IPC in the G.D. (Ex.Ka.-7) at serial no.22 on 26.5.1998 at 8:45 A.M.
5. After registration of the case, "chitthi majroobi" (letter for medical examination of injured) was got prepared for injured Hemraj Singh and Bhopal Singh and they were sent for medical examination at Primary Health Centre, Seohara.
6. Dr. Ashok Rana (P.W.3), who was posted at P.H.C., Seohara, examined the injuries of Hemraj Singh (P.W.1) on the same day i.e. 26.5.1998 at 9:00 A.M. and found following injuries on his person :
(i) Abrasion 5 cm. x 1.5 cm. on outer aspect of right lower limb 2.5 cm. below from right shoulder joint away from wound.
(ii) Contusion 4 cm. x 1 cm. on outer aspect of right thigh 10 cm. above from right knee joint, deep red in colour.
(iii) Abrasion 1 cm. x 0.5 cm. on outer aspect of right thigh 7 cm. above from left knee joint oozing from wound.
(iv) Contusion 11 cm. x 2 cm. on left side lumbar region 20 cm. below from scapula, deep red in colour.
(v) Contusion in area 11 cm. x 5 cm. on upper right buttock, deep red in colour.
(vi) Contusion 4 cm. x 2 cm. on outer aspect of right thigh 8 cm. away from injury no. (v), deep red in colour.
(vii) Lacerated wound 5 cm. x 1.5 cm. x muscle deep on right side scalp 11 cm. above from right ear margin irregular, fresh blood clot present.
(viii) Incised wound 3 cm. x 0.5 cm. x 0.25 cm. on right side scalp 1.5 cm. above from injury no. (vii). Margin sharp clean cut everted. Fresh blood clot present.
As per opinion of the doctor, all the injuries found on the person of the injured were simple in nature. Injuries no. (i) and (iii) were caused by friction from rough surface. Injuries no. (ii), (iv), (v), (vi) and (vii) were caused by blunt and hard object whereas injury no. (viii) was caused by some sharp edged object. Injuries were fresh in duration.
7. Injuries sustained by injured Bhopal Singh (deceased) were not noted down by the concerned doctor at P.H.C., Seohara, rather they referred him to Medical College, Meerut. However, the injured Bhopal Singh succumbed to his injuries at 1:00 P.M. at Dhanaura Mandi on the way to Meerut Medical College. Thereafter, dead body of the deceased was brought back to his village and information of his death was given at the concerned police station in writing (Ex.Ka.-9) by P.W.9 Brij Pal Singh. On the basis of this information, section 302 IPC was added in the case. G.D. entry was also made to this effect which is Ex.Ka.-8. Thereafter, S.I. Ram Swaroop Sagar (P.W.10) of the concerned police station reached at village Galla Khedi and performed the inquest on the body of the deceased Bhopal Singh and prepared inquest memo Ex. Ka-10 and other papers relating to inquest. Letters to R.I., C.M.O., photo lash, challan lash, sample seal were also prepared and keeping the dead body of the deceased in a sealed cloth it was sent for postmortem examination at District Hospital, Bijnor.
8. Autopsy on the body of the deceased Bhopal Singh was performed at District Hospital, Bijnor on 27.5.1998 at 1:00 P.M. by Dr. Vijay Kumar Goel (P.W.5) and he prepared the postmortem report (Ex. Ka-3). The age of the deceased was about 48 years. He was a middle aged man of thin built. Membranes were pale. Eyes were partly opened. Mouth was closed. Rigor mortis was found in all the four limbs.
The following antemortem injuries were found on the body of the deceased :
(i) Incised wound 1.5 cm. x 0.5 cm. x bone deep on right upper arm and on lower part.
(ii) Multiple contusions in an area of 9 cm. x 10 cm. on right upper arm. On exposure, there was collection of blood inside the muscles and humerus bone was found fractured.
(iii) Three abrasions in an area of 12 cm. x 5 cm. in right forearm upto wrist. On exposure, there was collection of blood under skin. Both bones of right forearm were fond fractured.
(iv) Abrasion ½ cm. x ½ cm. on the left elbow, outer side.
(v) Abrasion 5 cm. x ½ cm. on back of left forearm, mid area.
(vi) Abrasion 3 cm. x 1 cm. on left wrist, back and middle side.
(vii) Multiple contusions on whole back side in an areas of 60 cm. x 30 cm. Largest contusion was of size 13 cm. x 4 cm. and smallest one was of 8 cm. x 3 cm. They were ten in numbers.
(viii) Multiple contusions in an area of 30 cm. x 12 cm. on back of left hip and on back side of thigh in size of 5 cm. x 2 cm. to 10 cm. x 4 cm. Six in numbers.
(ix) Multiple abrasions in an area of 27 cm. x 10 cm. in front of left knee and legs. 1 cm. x 1 cm. to 3 cm. x 1 cm. size. Eight in numbers.
(x) Lacerated wound 1 cm. x 0.5 cm. x bone deep on left leg just above medial malleolus. On exposure, both bones of leg were found fractured.
(xi) Contusion 6 cm. x 2.5 cm. in abdomen on right side.
(xii) Multiple contusions in an area of 30 cm. x 15 cm. on right hip and thigh area. Four in numbers.
(xiii) Multiple abrasions in an area of 32 cm. x 6 cm. in front of right knee and leg, ten in numbers, with redness and swelling all around right leg.
(xiv) Abrasion 2 cm. x 1.5 cm. on top of right shoulder.
On internal examination, 7th, 8th and 9th ribs of left side were found fractured and there was fracture on posterior ends. There was injury on the left lung whereas no injury was found on the right lung. Teeth were 16/16. 100 gm. liquid was found in the stomach. As per opinion of the doctor, death of the deceased was the outcome of shock and haemorrhage as a result of ante-mortem injuries.
9. Initially, the investigation was made by P.W.10 S.I. Ramswaroop, who visited the place of occurrence and prepared site plan (Ex.Ka.-15) mentioning all details of the place of occurrence. He also took blood stained and plain earth into possession and prepared fard. Statement of witnesses were also recorded. After the case was converted into section 302 IPC, investigation was handed over to P.W.11 S.O. Jaipal Singh. The said investigating officer, after fulfilling entire formalities, submitted charge-sheet (Ex.Ka.-21) against the accused-respondents.
10. Case, being exclusively triable by the Court of Sessions, was committed for trial. Accused appeared and charge against them was framed for the offence punishable under sections 307/34, 302/34, 323/34, 504, 506. The charges were read out and explained to the accused-respondents, who all abjured them, pleaded not guilty and claimed to be tried.
11. During trial, in order to prove its case, prosecution examined as many as 11 witnesses i.e. P.W.1 Hemraj, the informant and injured of the case, P.W.2 Anand Singh, P.W.3 Dr. Ashok Rana, who examined the informant injured Hemraj, P.W.4 Constable 866 Mahendra Singh, P.W.5 Dr. Vijay Kumar Goel who performed the autopsy on the body of the deceased, P.W.6 Contable 732 Jeevan Singh, P.W.7 H.C. Sobran Singh, P.W.8 Constable 450 Rajnath Singh, P.W.9 Brijpal Singh, P.W.10 S.I. Ram Swaroop Sagar and P.W.11 S.O. Jaipal Singh.
12. After closing the evidence, statement of the accused under section 313 Cr.P.C. was recorded by the trial court in which the accused denied the entire prosecution evidence and claimed that they were falsely implicated in this case. Oral and documentary evidence ware also adduced by the accused in their defence.
13. Trial court after hearing the parties disbelieved the prosecution version and vide impugned judgment and order, acquitted the accused-respondents for the charges framed against them. Hence, this appeal.
14. We have heard Sri Sanjay Kumar Nigam, learned A.G.A. for the State-appellant as well as Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Ajatshatru Pandey, learned counsel for the accused-respondents.
15. Submission of learned A.G.A. appearing for the State was that finding arrived at by the trial court in the impugned judgment and order regarding the acquittal of the accused-respondents are illegal and perverse. P.W.1 Hemraj Singh, P.W.2 Anand Singh and P.W.9 Brij Pal Singh are eye-account witnesses. P.W.1 Hemraj Singh sustained injuries in the said incident. He was also beaten by the accused-respondents in the incident. Medical evidence fully supports the oral version. There was a dying declaration in the form of statement of the deceased under section 161 Cr.P.C., which can be relied upon, but the trial court ignoring the settled principle of law disbelieved the aforesaid statement to be treated as dying declaration. First information report was lodged promptly with clear details. Motive to commit the present offence has also been disclosed in it. Finding of the trial court regarding the first information report is also illegal and perverse. Prosecution was able to prove the date, time and place of the incident. All the accused-persons have participated in commission of the crime. Actual role played by each and every accused has also been established by the prosecution. Weapon assigned to them have also been made clear during examination. Non-examination of the scribe of written report is not fatal to the prosecution case. Minor contradictions occurred in the statement of the witnesses are not material to disbelieve the statement of eye-account / injured witnesses. Thus, referring to the entire evidence adduced by the parties as well as finding recorded by the trial court in the impugned judgment and order, prayer was made to allow the appeal and set-aside the impugned judgment and order convicting the accused-respondents.
16. Per contra, learned counsel appearing for the accused-respondents argued that it was a blind murder case. None has seen the incident. P.W.1 is also not an eye-account witness. He did not receive injuries in the said incident. Injury report said to have been prepared in respect of P.W.1 Hemraj Singh is a fake and forged document and injuries are self-suffered. First information report was not in existence at the time mentioned in it. Thus it is too prompt which creates doubt about the genuineness of the first information report. Incident is said to have taken place at 6:00 hours in the morning. First information report is said to have been lodged at 8:45 A.M. Injury report prepared in respect of P.W.1 Hemraj Singh is of 9:00 A.M. Thus referring to the aforesaid time, it was further argued that looking to the distance of the police station from the place of occurrence and the conveyance / vehicle said to have been used by the injured and the deceased in reaching the police station, it appears improbable that the first information report was lodged at 8:45 A.M. It is the prosecution case that the written report was prepared in this matter at Tajpur town from one Naresh. Some time would have spent in preparing the written report. Thus, the finding recorded by the trial court in this respect is in accordance with evidence and law. Referring to the finding arrived at by the trial court on the point of motive, it was further submitted that the trial court after discussing in detail the prosecution evidence has reached on a conclusion that enmity was against the informant's side for false implication of the accused-respondents, as the informant's side was convicted and sentenced in a criminal case started on behalf of the accused-respondents' side. Enmity suggested by the prosecution is not believable. This fact finds support with the statement of prosecution witnesses itself. Dying declaration said to have been recorded in the matter in the form of statement under section 161 Cr.P.C. is also not believable. It is not as per Police Regulations. There are major contradictions as to whether witnesses, said to be eye-account witnesses, were present near the place of occurrence or they had gone towards the eastern side of the village to attend the nature call. Thus, on this point also, there is contradiction in the statement of prosecution witnesses. Medical evidence does not support the oral version, as no injury was found, said to have been sustained by the injured and the deceased said to be caused by the weapon tabal. Thus, referring to the entire evidence as well as finding recorded by the trial court in the impugned judgment and order, it was next argued that the impugned judgment and order is based on correct appreciation of fact and law and is well discussed and reasoned order. The appellate court cannot substitute its view over the view of the trial court, as the view taken by the trial court is a possible view. In support of his submissions, learned counsel for the accused-respondents placed reliance on the following case laws :
(i) Anwar Ali and Others Versus The State of Himachal Pradesh, MANU/SC/0723/2020
(ii) Ghurey Lal Versus State of U.P. (2008) 10 SCC 450
17. We have considered the rival contentions advanced by the parties and have gone through the entire record.
18. Before proceeding to deal with the submissions raised across the Bar, we would like to point out the findings arrived at by the trial court in the impugned judgment and order, which are as follows :
(i) F.I.R. was not in existence at the time mentioned in it. Thus, it is ante-timed document.
(ii) Non-examination of the scribe of the written report affects the prosecution case.
(iii) Injury report said to have been prepared in respect of injured Hemraj is not a genuine document as it could not be prepared at the time mentioned in it.
(iv) P.W.1 Hemraj Singh, P.W.2 Anand Singh and P.W.9 Brij Pal Singh are not eye-account witnesses. Their presence at the place of occurrence at the time of commission of offence becomes highly doubtful from their statement itself.
(v) Enmity is against the informant's side itself for false implication of the accused. Enmity shown by the prosecution witnesses is not natural and believable.
(vi) Prosecution was also not able to prove the place of incident from its evidence beyond reasonable doubt.
(vii) Dying declaration is not reliable document.
(viii) Manner of incident is also not proved from the statement of prosecution witnesses.
(ix) There are major contradictions in the statement of prosecution witnesses on material point.
(x) None has seen the incident.
(xi) Incident took place in the night hours. First information was lodged on the basis of false facts due to enmity discussed in the impugned judgment and order.
19. In this matter, as is evident from the record, incident is of 6:00 A.M. First information report was lodged on the same day at 8:45 A.M. Distance between the place of incident and the police station is of 17 kms. Prosecution case is that initially, injured and the deceased both were taken to the police station Seohara on a bullock-cart and after registering the case, they went to P.H.C. Thereafter, deceased, who was alive at that time, was referred to Meerut Medical College for better treatment and on the way he died. If the injury report of P.W.1 Hemraj Singh is taken into consideration, then also it has been prepared at 9:00 A.M. on the same day. First information report was lodged at 8:45 A.M. Trial court was of the view that it appears unbelievable that within 15 minutes after receiving the majroobi chhitthi, injured would have reached at the hospital concerned. If the finding arrived at by the trial court in the impugned judgment and order is minutely analyzed with the statement of P.W.1., P.W.2 and P.W.9 and other police witnesses, it emerge that sometime would have consumed in preparing the first information report, thereafter G.D. and majroobi chhitthi. In this situation, it will not be possible for P.W.1 Hemraj Singh to reach at hospital concerned at 9:00 A.M. itself. From the perusal of entire documents, it is also evident that the doctor concerned, who prepared the injury report, has admitted that injured was medically examined as private person whereas in the injury report, it is mentioned that it has been brought by police concerned. These two facts itself create doubt about the genuineness of the injury report. If such is the position, finding recorded by the trial court regarding the genuineness of the injury report belonging to P.W.1 Hemraj Singh cannot be taken as incorrect. Trial court while concluding the finding on this point has analyzed the entire evidence in detail and after a thorough discussion, has reached on such conclusion. Thus, we are of the view that finding of the trial court on this issue need no interference.
20. Now we are proceeding to deal with the submission regarding enmity. Trial court has concluded that P.W.1 - the informant has admitted in the cross-examination that he (informant) and the deceased both were convicted and sentenced in a prosecution started on behalf of the accused-respondents' side. Perusal of the record also reveals that when question to this extent was put by the defense counsel during cross-examination, P.W.1 Hemraj tried to conceal this fact. On query made by the court regarding the demeanor of this witness, he has admitted that he was convicted and sentenced as discussed here-in-above. Written report (Ex.Ka.-1) discloses that only this fact has been mentioned in it that "मुल्जिमान से हमारी पुरानी रंजिश चल रही है"
21. During examination before the trial court, P.W.1 Hemraj, who is the brother of the deceased, has stated that there was dispute between the deceased and the accused-respondents' side regarding the portion of the purchased land. When he was cross-examined, he has admitted that settlement was arrived at between the parties and portion of land belonging to the parties had been bifurcated. At one point of time, he has admitted that portion belonging to the accused-respondents was found better and portion belonging to the deceased was found less better. Analyzing to this fact, the trial court was of the view that if the portion belonging to the accused-respondents' side was better than the portion belonging to the deceased, then in that situation, grudge will be to the deceased side and the enmity disclosed during examination will not be sufficient to commit the present offence by the accused-respondents, rather there is probability that accused-respondents were falsely implicated in this matter due to enmity admitted by P.W.1, the informant. If the findings arrived at by the trial court in the impugned judgment and order are minutely analyzed with the facts and evidence of the present matter, it is clear that finding of the trial court is based on evidence available on record and is a possible view. It is not based on conjecture and surmises. Thus, findings of the trial court on point of enmity is also not interfererable.
22. As far as non-examination of scribe of the written report is concerned, it has been admitted in the evidence by P.W.1 that Naresh is the relative of the informant. He met with him at Tajpur and at that place he drafted the written report on his dictation. If the statement of prosecution witnesses are closely analyzed in the light of findings arrived at by the trial court regarding the non-examination of Naresh, it is clear that his close relative was in serious condition. He did not think to go to police station nor to the hospital. Trial court finding is that non-examination of Naresh by the prosecution became fatal to the prosecution case. If the finding arrived at by the trial court on this issue be not taken as correct appreciation of fact and evidence, then the Court has to analyze other evidence adduced by the parties to form an opinion contrary to the opinion formed by the trial court. So far as presence of P.W.1 Hemraj, P.W.2 Anand Singh and P.W. 9 Brijpal on the date, time and place of occurrence is concerned, nothing has been mentioned in the written report (Ex.Ka.-1) disclosing this fact that P.W.1 - the informant was also heading towards the field following the deceased. When he was examined during trial, he has stated that he was also going towards the field for nature call behind the deceased. Trial court has opined that P.W.1 was not an eye-account witness. He was not present at the place of occurrence at the time of offence. If the statement of P.W.2 Anand Singh and P.W.9 Brijpal are taken into consideration, it is evident that P.W.9 Brijpal has stated that this witness along with P.W.1, P.W.2 and the deceased were easing towards eastern side of the village whereas in the written report (Ex.Ka.-1) it has been mentioned that the deceased Bhopal had gone to ease towards southern side of the village. P.W.9 has also admitted that pond is situated towards eastern side of the village and they had gone towards that pond to attend the nature call. P.W.2 Anand Singh has also admitted that when he was easing, he heard the noise and thereafter he reached at the place of occurrence. Distance between the place of occurrence and the place where they were easing has been stated about 200 yards. At one point of time, P.W.2 has stated that when he reached at the place of occurrence, deceased was unconscious, but no blood was oozing. He has also made contradictory statement to the aforesaid statement that incident took place when he reached at the place of occurrence. P.W.1 claimed himself to be an eye-account injured witness. His medical report was prepared on the same day at about 9:00 A.M. First information report was lodged at 8:45 A.M. When P.W.3 Dr. Ashok Rana was cross-examined, he has specifically stated that medical examination of P.W.1 was conducted by him as a private person. He has also admitted in cross-examination that injuries found on the body of the injured P.W.1 Hemraj may be self-suffered and no injury was found over his body said to have been caused by weapon "tabbal". Trial court taking into consideration the entire facts, circumstances and the evidence adduced by the parties was of the view that P.W.1 was not present at the place of occurrence, injuries said to have been found on the body of the injured were not occurred in the said incident, rather injury report is a forged document and injuries are manufactured. If the prosecution evidence are minutely analyzed in light of the argument advanced by learned counsel for the parties as well as finding arrived at by the trial court, it can safely be held that finding of the trial court that P.W.1 was not present at the place of occurrence at the time of commission of the offence is also based on correct appreciation of facts and evidence. Had he been the eye-account witness of the incident, the material contradictions elucidated in the impugned judgment and order in his statement do not occur and material fact regarding his presence at the place of occurrence comes in the written report (Ex.Ka.-1) itself. As far as presence of P.W.2 Anand Singh at the place of occurrence is concerned, this witness has also made contradictory statement. If the statement made by this witness are minutely analyzed / compared with the statement of P.W.9 Brijpal and P.W.1 Hemraj in light of the discussion made by the trial court in the impugned judgment and order, it is clear that in fact, this witness was also not present at the place of occurrence. When deceased was being beaten by the accused-persons, he has not seen the incident. Finding arrived at by the trial court regarding presence of this witness at the place of occurrence is also based on correct appreciation of fact and evidence.
23. So far as the presence of P.W.9 Brijpal at the place of occurrence at the time of offence is concerned, this witness has admitted that he was government employee and was on duty in his office. If the statement of this witness is taken into consideration, as has been discussed here-in-above, this witness has made different story with the facts disclosed in the written report (Ex.Ka.-1) and as stated by P.W.1 and P.W.2. If this witness was present in the eastern side of the village near the pond and the deceased had gone to ease towards southern side of the village, it appears improbable and unbelievable that incident took place before this witness. Trial court has discussed the entire evidence minutely and has rightly observed that P.W.9 Brijpal was also not present at the time of occurrence. If the statement of P.W.1, P.W.3 and P.W.9 are also compared with the site plan prepared in the matter and the statement of investigating officers, it is evident that nothing has been stated by these witnesses to the investigating officer regarding the enmity between the parties on point of mend. Thus, we are also of the view that finding of the trial court, which is based on evidence adduced by the parties, is correct appreciation of fact and evidence. P.W.1, P.W.2 and P.W.9 were not eye-account witnesses. No interference is required in the finding of the trial court on this score.
24. As far as medical evidence is concerned, we have discussed here-in-above that injury report of the injured P.W.1 Hemraj is a forged document. No injury from the weapon tabbal was found on his body, although, the fact witnesses have stated that P.W.1 was also beaten by the accused-respondents by tabbal. Trial court has also doubted the presence of P.W.1, P.W.2 and P.W.9 at the place of occurrence at the time of commission of the offence on the ground that their statement are not supported with medical evidence. No injury was found on the body of the deceased said to have been caused by weapon tabbal. Trial court has also observed that tabbal is a heavy cutting weapon. No such injuries said to have been caused by the weapon tabbal were found on the body of the deceased. Trial court has also based its finding on the basis of contents of the stomach and has opined that incident took place in other manner caused by some unknown persons. Due to this reason, there was contradiction in the statement of prosecution witnesses on point of injuries. P.W.1 Hemraj has also made contradictory statement as to whether he was hospitalized in P.H.C., Seohara or he was accompanying the deceased for Meerut Medical College. If the finding of the trial court regarding the medical evidence are minutely analyzed with the submission raised across the Bar, no illegality, infirmity or perversity is found in it. Certainly medical evidence and the oral version of the said eye-account witness are contradictory to each other.
25. So far as the dying declaration said to have been recorded in the matter is concerned, initially the first information report was lodged in this matter under section 307 IPC. Deceased was taken to P.H.C., Seohara on a tractor-trolley. It is the case of the prosecution that looking to the serious condition of the deceased, he was immediately referred to the Meerut Medical College, but he died on the way when he was being taken to the Medical College. No evidence was adduced on part of the prosecution to establish that treatment was given to the deceased before proceeding to Medical College, Meerut. When postmortem of the deceased was conducted, dressing / bandage was found over the wounds of the deceased. Trial court while analyzing the prosecution evidence has opined that if no treatment / first aid was done to the injuries said to have been sustained by the deceased on his body, then under what circumstances and how the wounds dressing was found over the body of the deceased. If the statement of P.W.5 Dr. Vijay Kumar Goel, who conducted the postmortem on the body of the deceased, is taken into consideration, it has come that no inury was found on the body of deceased said to have been caused by the weapon "tabbal".
26. Statement of P.W.1 Hemraj and the deceased are said to have been recorded by the investigating officer concerned at P.H.C., Seohara itself. Trial court doubting the genuineness of the dying declaration was of of the opinion that dying declaration has not been recorded following the guidelines of Police Regulations. Doctor was present at that time. Prosecution witnesses themselves have admitted that condition of the deceased was serious. The investigating officer concerned did not obtain the certificate of the Doctor concerned regarding the physical and mental condition of the deceased. Trial court has also opined that condition of the deceased was serious and he was not in a position to speak, as has been admitted by the prosecution witnesses themselves. Therefore, it appears that the dying declaration was recorded by the investigating officer at his own. Trial court while arriving at the conclusion on this point has discussed in detail the entire evidence and thereafter has formed opinion that the dying declaration said to have been recorded in the matter is not free from suspicion. If the entire prosecution evidence are analyzed in light of the submissions raised across the Bar, no illegality, infirmity or perversity is found in the finding of the trial court on this point. Thus, no interference is required on this issue.
27. As far as the place of incident is concerned, if the statement of prosecution witnesses are compared with the site plan prepared in the matter and also with the fact disclosed in the written report, it emerge that the written report is clear that incident took place on the way whereas site plan discloses that incident occurred at two places. Firstly, in the field of the deceased and thereafter in the field of Rampal. The investigating officer has not shown the place of occurrence on the path. Witnesses examined in the matter, who claimed themselves to be eye-account witnesses, have also made contradictory statement. The contradiction occurred in the statement of prosecution witnesses due to the reason that they are not eye-account witnesses. Had they been eye-account witnesses, contradictions on point of place of occurrence would not have come in their statements. Trial court while analyzing the findings on this point has discussed the entire evidence, which is based on reasoning. On comparison of the evidence adduced by the parties with the findings of the trial court in light of the submissions raised across the Bar on this point, we do not find any error, illegality or perversity in the findings of the trial court on this point.
28. It is pertinent to mention here that the powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellant court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal. It is also golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is also settled principle of law that paramount consideration of the Court is to ensure that miscarriage of justice is avoided. The case of the prosecution must be judged as a whole having regard to the totality of the evidence in appreciating the evidence. The approach of the court must be an integrated one and not truncated or isolated.
29. Thus, on close scrutiny of the entire evidence adduced by the prosecution and comparing the same with the finding arrived at by the trial court in the impugned judgment and order, the Court is of the opinion that finding of the trial court is based on correct appreciation of fact and evidence. The view taken by the trial court in the impugned judgment and order is a possible view. The appellate court will interfere in such type of cases only when there is strong and compelling reasons in the prosecution evidence which dislodge the finding of the trial court itself. Merely, on the basis of statement of the witnesses examined in the matter, whereas prosecution case is not supported with medical evidence, manner and style of the incident stated by the prosecution witnesses is also not believable, then Court is of the view that the trial court has passed the impugned judgment and order after proper appreciation of the evidence and it is well reasoned order. Findings recorded by the lower appellate court in the impugned judgment and the order acquitting the accused-respondents from the charges levelled against them cannot be termed to be illegal, improper or illogical. Lower appellate court has rightly held that prosecution has not succeeded to prove guilt of accused-respondents beyond reasonable doubt. The accused-respondents are not found guilty for the offence punishable under Sections 307/34, 302/34, 323/34, 504, 506 IPC. As such, impugned judgment and order passed by lower appellate court is liable to be upheld and government appeal, having no force, is liable to be dismissed.
30. Accordingly present Government Appeal is dismissed and the impugned judgment and order passed by the lower appellate court is affirmed.
Order Date :- 19.07.2022.
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