Allahabad High Court
State Of U.P. vs Rakesh And Others on 9 August, 2010
Author: Bala Krishna Narayana
Bench: Bala Krishna Narayana
1
COURT NO.55
GOVERNMENT APPEAL NO.2887 OF 2008
State of U.P. Vs. Rakesh and others
Connected with
CRIMINAL REVISION NO. 792 OF 2008
Shyam Sunder Vs. State of U.P. and others.
Hon'ble Mrs. Poonam Srivastav, J.
Hon'ble Bala Krishna Narayana, J.
The instant Government Appeal is preferred against judgement and order of acquittal dated 13.12.2007 passed by Additional District & Sessions Judge (Special) Baghpat in Session Trial No.110 of 2005 arising out of case crime no.16 of 2003 State Vs. Rakesh and others under Sections 307, 452 I.P.C. Police Station Chhaprauli, District Baghpat.
Government Appeal was connected with criminal revision no.792 of 2008 Shyam Sunder Vs. State of U.P. and others filed against acquittal.
We have heard learned A.G.A. on behalf of the State and perused the judgment of acquittal.
Five accused/ opposite parties are alleged to have caused injuries to Ram Saran father of first informant inside his house with an intention to kill him. Injured was crushed and given severe beating on account of which he became unconscious. Incident is alleged to have taken place on 9.2.2003 at 17:30 hours. It is further alleged that certain villagers got the injured admitted at 23:00 hours in community health centre Baraut and on the next day i.e. 10.2.2003 at 2:00 p.m., he was admitted in emergency ward in Guru Teg Bahadur Hospital, Sahadra, Delhi. First informant is an employee in Ministry of Defence and posted in West Bengal and rest of his brothers reside in Delhi. First information report was registered after five days on 14.2.2003.
The learned Sessions Judge has granted acquittal on a 2 number of grounds:-
(1) First is delay in lodging the first information report. (2) Narration in the first information report is that injuries were caused by gun, spear, sword and other weapons and the injured is alleged to have been crushed badly but there is no such injury report on record to substantiate injuries of the aforesaid weapons.
(3) X-ray report as well as C.T. Scan and M.L.C. report are not proved.
(4) First information report has also not been proved. PW-3 Shyam Sunder is not an eye witness of the occurrence.
(5) PW-1 Ram Saran Das who was injured witness has not disclosed details of the incident to Shyam Sunder, therefore, court below was of the view that how could details of incident be mentioned in the first information report by the first informant who is admittedly not an eye witness. In view of non examination of various persons, neither injury report nor any supplementary injury report of X-ray, C.T. Scan was proved and, therefore, could not be read in evidence.
(6) Injured himself admitted in his cross examination that police did not interrogate him at any point of time prior to the trial. Injured witness has only stated that one of the accused was armed with gun and rest of them with iron rods and Lathi and Danda. The entire story of sword, spear etc. is nowhere in the statement of the injured himself.
(7) PW-3 Shyam Sunder who had lodged first information report, has admitted in the cross examination that the entire incident was narrated to him by his brother Suresh Kumar and his father had not disclosed anything about the incident. He was unconscious but when Suresh Kumar brother of the first informant was not present at the scene of incident, how could he disclose details of the incident.3
In the circumstances, learned Trial Judge was of the view that in fact there was no sufficient evidence even to submit charge sheet against accused. Besides, discrepancies in the investigation are many in numbers. The uncertainty in the statement of PW-5 Dr. Prakash Khatri about supplementary report prepared by Dr. Hemant was also doubtful. In fact, witness has admitted that he did not prepare C.T. Scan Report. Not a single piece of paper is on record which could substantiate as to who had admitted the injured in the hospital, medical report also does not corroborate prosecution case, therefore, judgement and order of acquittal was passed by Additional District & Sessions Judge (Special) Baghpat. In the circumstances, we are in agreement with the findings of the court below and the judgment does not call for any interference.
On a close scrutiny of the entire judgment and evidence on record, which was summoned along with record of criminal revision preferred by Shyam Sunder, we are of the considered view that learned Judge has not committed any error while acquitting the accused. In fact, there is not an iota of evidence to substantiate prosecution case and judgment of acquittal does not call for any interference whatsoever.
Sri L.K. Pandey Advocate while arguing criminal revision no.792 of 2008 has laid emphasis on the order dated 28.3.2008 passed by Hon'ble Mr. Justice M.K. Mittal after supplementary affidavit was filed by him. Accused/opposite party nos.2 to 6 were issued notices and directed to file counter affidavit within four weeks fixing 28.4.2008 for argument on the question of admission. Criminal revision was connected with Government appeal by this Court vide order dated 30.4.2009. Pursuant to the aforesaid order, criminal revision is also placed before us.
Criminal revision was preferred by first informant. We need not repeat what we have stated above but there is yet 4 another argument advanced on behalf of complainant's counsel on the basis of supplementary affidavit. Accused Jaipal and Deshpal were summoned under Section 319 Cr.P.C. PW-1 Ram Saran Das was recalled for giving his evidence because two persons were arrayed as accused during the trial. Additional District Government Advocate brought to the notice of the court that PW-1 Ram Saran Das did come to the court and met him but he was not ready to give evidence. Additional District & Sessions Judge (Special) Baghpat passed an order to the effect that despite witness was present, he declined to give his evidence for the second time, therefore, request was made for issuing non-bailable warrant against the witness. The court issued summoned and on own admission of A.D.G.C. the witness did come to court and, therefore, 15.3.2007 was fixed. Charge was framed on 2.4.2007 against two newly added accused Jaipal and Deshpal and the trial proceeded.
Revisionist's counsel while placing reliance on a decision of Hon'ble Apex Court in the case of Guriya @ Tabassum Tauquir and others Vs. State of Bihar and another J.T.2007 (11) SC 438, on paragraph no.8, has tried to convince the Court that whenever accused are summoned under Section 319 Cr.P.C., de novo trial is mandatory requirement to ensure no prejudice is caused to persons who are added as accused during the continuation of trial. Paragraph no.8 of the said decision is quoted hereinbelow:-
"The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any persons not being the accused has committed any offence, the courts may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person 5 could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the winesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross examination of the newly added accused is the mandate of Section 319(4). The words "could be tried together with the accused" in Section 319 (1), appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319 (1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court."
Principle of law laid down by Hon'ble Apex Court is absolutely correct and we agree that such person who was not an accused at the time of commencement of the trial, if he is arrayed 6 as an accused at the stage of Section 319 Cr.P.C., he is entitled for an opportunity and the witness examined earlier is to be re- examined so that no prejudice is caused to the accused. No doubt, accused should not be put to any loss, he should be given every possible opportunity to defend himself but we fail to understand how revisionist stands to benefit from the aforesaid decision. Assuming witness failed to appear for giving evidence, even then if at all anyone aggrieved, it is the accused themselves but judgment and order of acquittal cannot be set aside on this basis as argued by Sri L.K. Pandey Advocate appearing on behalf of first informant/ revisionist against judgment of acquittal.
In view of what has been stated above, we are of the considered view that judgement and order of acquittal dated 13.12.2007 passed by Additional District & Sessions Judge (Special) Baghpat in Session Trial No.110 of 2005, is absolutely perfect. There is no error whatsoever. The instant Government Appeal and criminal revision are dismissed.
Dt. 9.8.2010 rkg