Allahabad High Court
Bharat And Others vs State on 11 April, 2014
Bench: Sheo Kumar Singh, Anant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Case :- CRIMINAL APPEAL No. - 1342 of 1991 Appellant :- Bharat And Others Respondent :- State Counsel for Appellant :- N.D. Shukla Counsel for Respondent :- D.G.A.,R.B. Sahai Connected with Case :- GOVERNMENT APPEAL No. - 2174 of 1991 Appellant :- State Of U.P. Respondent :- Sudama And Others Counsel for Appellant :- Mohd. Lal Pal,N.D. Shukla Counsel for Respondent :- A.G.A. Hon'ble Sheo Kumar Singh,J.
Hon'ble Anant Kumar,J.
(Delivered by Hon'ble Anant Kumar,J) Both these appeals are connected with each other and arise out of the same session trial number and as such, they are disposed of by a common judgment.
Criminal Appeal No. 1342 of 1991, under Section374(2) Cr.P.C. has been filed by the accused persons Bharat, Shyam Bihari, Bunaik and Sunaik against the judgment and order ated 17.7.1991 passed by Ist Additional District and Sessions Judge, Jaunpur in Session Trial No. 168 of 1986, State vs. Bharat & others convicting and sentencing the appellants under Section 302/34 IPC to undergo for life imprisonment, under Section 307/34 IPC rigorous imprisonment for four years, under Section 323/34 IPC for one year rigorous imprisonment and under Section 324/34 IPC rigorous imprisonment for one and half year respectively. All the sentences were directed to run concurrently.
It is pertinent to mention here that during pendency of the present appeal, accused Sunaik has died and a report to this effect dated 27th January, 2014 from Chief Judicial Magistrate, Jaunpur is on record. So, the appeal against him stands abated.
Government Appeal No. 2174 of 199, under Section 378 Cr.P.C. has been filed by the State of U.P. in respect of same judgment and order against Sudama, Sukhraj, Chhotey Lal and Harischandra because they have been acquitted.
In brief, the prosecution story runs like this for this appeal, that one Nanhakoo Pal son of Bhagelu Pal, village Katwar, Police Station Meerganj, District Jaunpur had submitted a written tehrir in the police station to this effect that at their door in the northern side, there was an old abadi regarding which there is a civil dispute with co-villagers Bharat Lal, Ram Kishan Bind, Shyam Bihari son of Shivzor Bind. In the said land, on 12.5.1985 Bharat and Shyam Bihari and others were putting a naand forcibly to which his cousin brother Pandhari Pal, father Bhagelu Pal and complainant had reprimanded them from forcibly possessing the land and putting the said naand. Due to this enmity, at about 1:00 P.M., Bharat son of Ram Kishun having katta, Shyam Bihari son of Shivzor Bind having ballam, Bunaik son of Kishore having gandasa, Sunaik son of Kishore Bind, Harishchandra son of Hiralal Bind, Sudama and Sukhram sons of Munnilal, Chootley Lal son of Vishwanath Bind having lathies cordoned them and by using their respective arms have inflected injuries. It is further stated that due to fire and lathi blows, the complainant had sustained injuries, his cousin brother Pandhari son of Jokhu Lal sustained injury in the head, back and leg, father Bhagelu sustained injuries in head, arm and back with lathi, ballam and gandasa and due to these injuries, father had died on the spot. At the time of occurrence, co-villagers Sarju son of Kuber, Radhe Shyam son of Ram Khelawan, Balai son of Sukran Pal, Amarnath son of Bechhu and a lot of persons collected there had seen the occurrence. They have come to police station along with dead body on a cot. It was requested that report be lodged and action be taken. This written complaint was registered at the police station concerned at 3:15 P.M. at Crime No. 23/85 and the same was entered in G.D. Rapat No. 16 under Sections 147, 148, 149, 323, 324, 307 and 302 I.P.C. Injured Pandhari Pal and Nanhakoo Pal were sent for medical examination.
The injured Pandhari Pal was medically examined on 12.06.1985, at 7:30 P.M. at P.H.C. Barasathi and following injuries were found on his person :-
Injuries:- (1) Incised wound on (Lt) side scalp, 11 cm. above (Lt) ear base, size being 4 cm. x 1 cm. x scalp deep, blood clots present around the wound, Bleeds on touch.
(2) Incised wound on back of scalp 6 cm. above occiput, Size being 2 cm. x 1 cm. x scalp deep, blood clots present around the wound, bleeds on touch.
(3) Contusion on (Rt) side back, scapular area, size being 13 cm. x 3 cm., linear shape, reddish colour, having abrasion on its upper part, size 5 cm. x 2 cm.
(4) Contusion on (Rt) side back, placed at Right angle to mid of injury No.(3), Size being 10 cm. x 2 cm., reddish colour.
(5) Contusion on (Lt) side back, on upper part of scapular area, size being 16 cm. x 3 cm., reddish colour.
(6) Contusion on (Lt) side back, 2 cm. above injury No.(5), size being 14 cm. x 3 cm., reddish colour.
(7) Contusion on (Lt) side back, extending to (Rt) side, 2 cm. away from midline, 7 cm. below lower border of scapula, size being 19 cm. x 13 cm., reddish colour.
(8) Contusion on (Lt) side back, 4 cm. below lower border of scapula size being 16 cm. x 2 cm., reddish colour.
(9) Contusion on (Lt) side lower back, at sachro Lumbar joint, size being 4 cm. x 2 cm., reddish colour.
(10) Abrasion on (Rt) side upper part of Thigh, lateral side, at (sic) 1 cm. above greater trochenter of femur, size 5 cm. x 1 cm.
The injured Nanhakoo was medically examined on 12.06.1985, at 8:00 P.M. at P.H.C. Barasathi and following injuries were found on his person :-
Injuries:- (1) Punctured wound on (Lt) side upper arms, 11 cm. above (Lt) elbow joint, size being 0.5 cm. x 1 cm., bleeds on touch. One pellet present in wound, which is sealed and handed over to police, Bleeds on touch, No scorching or tattooing present, No exist wound present. Adv. for X.Ray to locate other pellets and reff to D.H. Jaunpur.
(2) Contusion on (Rt) hand, involving whole dorsal of hand, size being 7 cm. x 8 cm., bluish in colour. Adv. X.Ray to rule out bony injury and reff to D.H. Jaunpur.
(3) Contusion on (Rt) upper arm, 12 cm. above elbow joint, size being 9 cm. x 2 cm, reddish colour.
The post-mortem of the deceased Bhagelu son of Sudhoo was conducted on 13.6.1985 at 5:00 P.M. and following ante-mortem injuries were found on his person:-
(1)Lacerated wound 3 cm. x 5 cm. x scalp on the top of the head Lt parallel to the mid line 13 cms. above the Lt. Ear. There is fracture of Lt. Parietal & Temporal bone of the skull. Effusion of Blood over Lt hemisphere present. Colour of Effusion of Blood is dark red.
(2)Punctured wound 1 cm x 0.5 cm x skin, muscle of the Lt side of the Back-14 cms below the Lt scapula. This entering the Lt. side of the chest cavity through the inter costol space between 3rd & 4th rib converting it into penetrating wound. 3rd & 4th ribs of the Lt side chest are cut & Lt lung is penetrated & cut at two places in lower lobe, there is pool of Blood about 6 oz in the Lt side of the chest and Margines are clear cut.
(3)Incised wound with clear cut margins on the posterior aspect of the forearm, 3 cms. below the Rt elbow joint. 2 cm x 1 cm x skin & Bone of the Rt. forearm is cut & fractured.
The investigation was entrusted to Investigating Officer, who visited the place of occurrence and took bloodstained and plain soil and 74 pellets. They were sealed on the spot. After investigation, chargesheet was filed and trial proceeded.
On behalf of the prosecution, three witnesses of fact PW-1 Nanhakoo Pal, PW-2 Radhe Shyam, PW-3 Pandhari Pal were examined, whereas PW-4 Dr. R.K. Singh, who had conducted the post-mortem of the deceased, PW-5 C.P. 106 Ram Niwas Pathak, P.W.-6 S.I. R.P. Saroj, PW-7 Dr. K.P. Pandey who had medically examined Pandhari Pal and Nanhkoo were also examined as formal witnesses.
After hearing the parties, learned trial court has come to the conclusion that prosecution has bring home the accusation of accused persons Bharat, Shyam Bihari, Bunaik and Sunaik and has convicted them under Sections 302/34, 307/34, 323/34 and324/34 IPC whereas accused persons Sudama, Sukhraj, Chhotey Lal and Harischandra are concerned, they have not been found guilty and, therefore, they have been acquitted. Hence, both these appeals one from the side of the accused persons who have been convicted and sentenced by the trial court and other by the State of U.P. for acquitting the accused persons, have been filed.
We have heard Sri Prem Prakash, learned Advocate assisted by Sri N.D. Shukla, learned counsel for the appellants, Sri R.B. Sahai, learned counsel for the complainant and Sri Chandrajeet Yadav, learned Additional Government Advocate and have perused the record.
At the very outset, it is argued by learned counsel for the accused-appellant that injuries are not corroborated with F.I.R. and dimensions of the injuries of the injured and deceased persons as shown are not tallying with the weapons used in the occurrence. It is further argued that since body of the deceased was shifted from the place of occurrence and was taken to police station as per prosecution version, as such, the place of occurrence is not fixed. It is next argued that though the bloodstained earth, plain soil and pellets were collected from the scene of occurrence but the same were not sent for any chemical or ballistic expert nor any such report is on record. No independent witness has been examined. It is further submitted that there is contradiction in the statements of PW-1 Nanhakoo Pal and PW-2 Radhe Shyam. According to the statement of PW-1 Nankakoo Pal, when the accused persons were putting naand at the disputed site, they were not having any weapon and later on they came along with weapons, so this shows that the accused persons had no intention for committing any murder. It is also submitted that the doctor, who had conducted the post-mortem upon the dead body of the deceased, has mentioned in his report that there were blisters at different parts of the body. Peeling of the skin was present at places and decomposition was set in at the body and owing to decomposition there was formation of blisters. On this fact, it is argued that as per medical jurispurdence, the blisters may come on the body after 36 to 42 hours and as such, it is evident that occurrence had not taken place on the date and time shown in the F.I.R. It is also submitted that in this case, the investigation was very defective and the Investigating Officer has left so many lacunas in the prosecution case. It is also submitted that the statements of the accused persons under Section 313 Cr.P.C. were not properly recorded and incriminating material collected as evidence was not put to the accused persons so they had no opportunity to explain the same. It is also submitted that in the statement under Section 313 Cr.P.C. specific weapon used by the accused persons upon the injured and deceased have not been shown, as such the accused persons had no opportunity to explain their position. So, the entire trial has become vitiated and on the basis of evidence collected/recorded against the accused persons, they should not have been convicted. At last, it is argued that as per evidence, the fatal blow given to deceased Bhagelu i.e. injury no. 1, as per post-mortem report, which was a lacerated wound 3 cm. x 5 cm. x scalp on the top of the head left parallel to the mid line 13 cms. which caused fracture of left Parietal and Temporal bone of the skull was caused by Sunaik who has died and other accused persons Bharat, Shyam Bihari and Bunaik had not caused any major injury to the injured and deceased, so in these circumstances, the appeal of the present accused-appellants is liable to be allowed and they are liable to be acquitted.
It is further argued that so far as the other accused persons Sudama, Sukhraj, Chhotey Lal and Harischandra are concerned, they have no concern with the aforesaid crime as neither they are resident of the same locality nor they were concerned with the disputed land which was genesis of the crime, as such, they have rightly been acquitted by the trial court and since by a well thought and well considered judgment these accused persons have been acquitted, the State appeal has no force and it is liable to be dismissed.
From perusal of the statement of PW-1 Nanhakoo Pal, it is evident that there was a dispute between the parties pertaining to the sahan land. It is stated that in the southern side of the room of Shyam Bihari, at a distance of 4-5 paces, the accused persons were putting naand and they were putting bricks around the same. It is stated that at the time of occurrence, Bharat was having katta, Shyam Bihari was having ballam, Bunaik was having gandasa and rest of the accused persons were having battens. When the accused persons were putting naand at the place of occurrence, father Bhagelu and cousin brother Pandhari Pal had reprimanded them from doing so. On this, the accused persons had started beating them. The accused Bharat had opened fire from his katta. In the said occurrence, complainant along with Pandhari Pal and father Bhagelu has sustained injuries due to which father Bhagelu had died. This witness has stated that accused-appellants Shyam Bihari, Bunaik and Sunaik had beaten his father and rest of the accused persons had beaten him and his cousin brother Pandhari Pal. All the accused persons had cordoned them from all around and we were surrounded by them. PW-1 Nanhakoo Pal has stated in his statement that when the accused persons were putting bricks by the side of naand, they were not having arms with them whereas PW-2 Radhe Shyam has stated in his statement that when they were putting naand in old abadi, all the accused persons were having arms in their hands and Sunaik was having lathi in his hand and he had inflected blows to Bhagelu.
In this case, main thrust of the argument raised by the learned counsel for the accused-appellants is the statement recorded under Section 313 Cr.P.C.. It is evident from the statement of accused persons recorded under Section 313 Cr.P.C. that learned trial court has framed 13 questions and the same questions have been put to all the accused persons. Though, in the evidence of the witnesses of fact, specific role assigned to the accused persons has not been confronted to the accused persons in the statement recorded under Section 313 Cr.P.C. In this regard, learned counsel for the accused-appellants has placed reliance on catena of judgments of this Court as well as of Hon'ble Apex Court. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in (1984) 4 SCC 116 in paragraph-143, the Hon'ble Apex Court has held that apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code, 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them.
In another case of State of M.P. Vs. Shyamsunder Trivedi and others, reported in (1995) 4 SCC 262, wherein the Hon'ble Apex Court has held that we are in agreement with the High Court that since the incriminating material appearing in the prosecution evidence against Respondents 6 and 7 who were charged for an offence under Section 313 Cr.P.C. and no opportunity was afforded to them to explain those circumstances, they had been seriously prejudiced and no conviction could therefore be recorded against them for the offence under Section 210 IPC. In another case of Lallu Manjhi and another Vs. State of Jharkhand, reported in (2003) 2 SCC 401, it has been held by the Hon'ble Apex Court that If such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording the conviction of the accused persons.
Similar view has been taken by the Hon'ble Apex Court in the case of Vikramjit Singh alias Vicky Vs. State of Punjab, reported in (2006) 12 SCC 306. In the case of Ajay Singh Vs. State of Maharashtra, (2007), reported in 12 SCC 341, wherein the Hon'ble Apex Court has categorically held that the object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.
In a recent case of Raees Vs. State of U.P., reported in 2010 (7) ADJ 148, a Division Bench of this Court has also taken similar view and held that there is another disquieting feature of the trial procedure adopted by the trial Judge and that is while examining accused under Section 313 Cr.P.C. trial Court has not put any incriminating circumstances to him. It is trite law that in examination under Section 313 Cr.P.C. all incriminating circumstances has to be put to the accused and he has to be specifically questioned about it for him to make a proper answer. Examination of the accused under Section 313 Cr.P.C. is not an empty formality.
In the present case, this Court has very closely scrutinized the questions put to the accused persons and has come to the conclusion that above examination of accused under Section 313 Cr.P.C. that the trial Judge did not examine the question of specific role of assault made by him at all. It fetched out a third case all together without caring in the evidence of witnesses laid in the trial. Actually, trial Court never thought it to examine the accused for thrusting by piercing into chest of the deceased which was specific allegation against the appellant. This circumstance, which was not put to the accused in statement under Section 313 Cr.P.C., cannot be utilized against him at all.
In the light of above legal proposition, if the case in hand is tested on yardstick as shown in the above case laws, it is evident that the learned trial Court has recorded statements of the accused persons in a stereo type manner without putting specific role of the accused persons. In evidence, it has come that the fatal blow upon the head of the deceased was given by Sunaik but this fact was also not put to accused Sunaik. It is evident that all the questions framed by the trial Court under Section 313 Cr.P.C. were general in nature and only in question no. 5 specific weapon shown in the hand of the accused persons has been detailed but according to the evidence of the witnesses, specific role assigned to each of the accused persons, were not specifically put to the accused persons. So on this count, to our view, the statement recorded under Section 313 Cr.P.C. was defective and in these circumstances, the accused persons had not got opportunity to explain the incriminating material came in evidence against them. It is also evident from the material that investigation of this case was also not upto the mark as the bloodstained earth and plain soil as well as pellets collected from the place of occurrence, were sealed but the same were not sent for chemical examination or to the ballistic expert so that it may be ascertained that the occurrence has taken place at the same place where it is shown in the site plan. The dead body of the deceased was shifted from the place of occurrence and was taken to the police station by the complainant and other companions.
Looking to the entire facts and circumstances of the case as well as discussions made above, it is evident that the statement of the accused persons recorded under Section 313 Cr.P.C. by the trial court is defective and all incriminating material collected during course of trial was not put to the accused persons. So to our view, the entire trial has become vitiated as held by the Hon'ble Supreme Court and this Court in catena of judgments cited above. So to our view, Criminal Appeal No. 1342 of 1991 filed by the accused persons Bharat, Shyam Bihari, and Bunaik is liable to be allowed and therefore, they are liable to be acquitted from all the charges levelled again them.
In support of the government appeal, learned A.G.A. has argued that the injured persons have sustained injuries from lathies and since the accused persons Sudama, Sukhraj, Chhotey Lal and Harischandra were having lathies in their hands and it has come in evidence that these persons had participated in the occurrence, so learned trial Court has committed mistake while acquitting these accused persons. In this regard, learned counsel for the accused persons have taken support from Section 378 Cr.P.C. and has argued that once the trial Court has exercised its jurisdiction in not convicting these accused persons, there is a presumption of innocence in their favour and as such, under Section 378 Cr.P.C. this Court should not take second view convicting the accused persons.
In this regard, reliance has been placed on several decisions of the Apex Court as in the case of S. Anil Kumar Alias Anil Kumar Ganna Vs. State of Karnataka, reported in (2013) 7 SCC 219 wherein the Hon'ble Supreme Court has held in paragraph 14 as follows:
"14. This Court in Rohtas Vs. State of Haryana held that only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, can the High Court interfere with the order of acquittal. In the said case following observation was made by this Court:-
"27. The High Court interfered with the order of acquittal recorded by the trial court. The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.
In another case State of U.P. Vs. Gobardhan and others, reported in AIR 2013 Supreme Court 3033, the Hon'ble Supreme Court has held that this Court has laid down sufficient guidelines for interference by superior court against the order of acquittal. In exceptional cases where there are compelling circumstances to interfere and judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.
Similar view has also been taken by Hon'ble the Supreme Court in the cases of Govindaraju @ Govinda Vs. State, Sriramapuram PS and another, reported in 2012 Law Suit (SC) 173 and Pudhu Raja and another Vs. State, reported in 2012 Law Suit (SC) 608.
Looking to the entire material on record and considering the legal aspects of the matter, we are of the view that the learned trial Court has not committed any error in acquitting the accused persons Sudama, Sukhraj, Chhotey Lal and Harischandra and looking to the judgment of the of learned trial Court, it is evident that the trial Court has exercised its jurisdiction properly and relevant facts have been taken into consideration. Learned A.G.A. has failed to show any such inconsistency, illegality or perversity in the judgment of the trial Court which may warrant reappraisal and reversal of the judgment of acquittal recorded in favour of Sudama, Sukhraj, Chhotey Lal and Harischandra.
In view of the above facts and circumstances of the case, Government Appeal No. 2174 of 1991 fails and is dismissed accordingly. The judgment and order of acquittal recorded in favour of Sudama, Sukhraj, Chhotey Lal and Harischandra is, hereby, confirmed. Criminal Appeal No. 1342 of 1991 is allowed. The judgment and order of the trial Court convicting the accused persons Bharat, Shyam Bihari and Bunaik, is set aside. The accused appellants Bharat, Shyam Bihari and Bunaik are acquitted from all the charges framed against them. Since, the accused appellants Bharat, Shyam Bihari and Bunaik are on bail, they need not surrender and their sureties are discharged.
Let a copy of this judgment along the lower court record be sent to the Court concerned for necessary information.
Order Date :- 11.4.2014 Mukesh Kr.