Allahabad High Court
Kashi Prasad vs State Of U.P. on 6 January, 2020
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 13 Case :- CRIMINAL REVISION No. - 17 of 2009 Revisionist :- Kashi Prasad Opposite Party :- State of U.P. Counsel for Revisionist :- S.P. Maurya,Arvind Kumar Srivastava,Nagendra Mohan Counsel for Opposite Party :- G.A.,Bal Keshwar Srivastava,Sushil Kumar Singh Hon'ble Dinesh Kumar Singh,J.
1. The present revision is directed against the judgment and order dated 12.12.2018 passed by the Addl. Sessions Judge, Court No.9, Sultanpur in Sessions Trial No.243 of 1998 under Sections 147, 148, 149, 323, 324, 504, 506, 307, 302 IPC, Police Station Kadipur, District Sultanpur.
2. The facts of the case in brief are that on the basis of a complaint given by the complainant, P.W.1, an FIR at Case Crime No.243 of 1999 under Sections 147, 148, 149, 307, 323, 504, 506 IPC came to be registered against the accused-respondents with allegations that accused, Gurudeen on 04.07.1999 at 4:00 P.M. snatched sickle from the wife of the complainant and started assaulting her by kicks and fits. On commotion and alarm raised by the wife of the complainant, Smt Shakuntala w/o Santram, Ramdeo, Rambhadal, Smt Imla, Santram, Kesh Kumari, Jiana w/o Karia (deceased), Smt Kamla, Smt Rampati, Smt Karona w/o Jhuri rushed to save the wife of the complainant. At the same time, accused, Male Singh, Rangeele, Sache Lal, Akhilesh Kumar and brother-in-law of Rangeeley arrived there armed with gun and country made pistol, dharia and lathi. They started assaulting all the persons from the complainant side. The aforesaid incident was witnessed by Bakheru s/o Jairam and other residents of the village. Smt Jiana died in the hospital and thereafter, offence under Section 302 IPC was added. It is said that on the same day i.e. 05.06.1999 the other injured were examined. Investigating Officer, Mujahid Ali, P.W.7 conducted the inquest of the cadaver of the deceased on 05.07.1999 at 9:00 A.M. Postmortem was conducted on the same day.
3. The Investigating Officer after completing the investigation filed charge-sheet against six accused named in the FIR under Sections 147, 148, 149, 302, 307, 323, 504 and 506 IPC. Charges were framed against the accused. Accused adjusted charges and claimed to be tried.
4. Prosecution to prove its case examined P.W.-1 Kashi Prasad, the complainant, P.W.-2 Santram, the injured witness, P.W.-3 Dr. Anil Kumar Gupta, P.W.-4 Dr.V.N. Tiwari, P.W.-5 Inspector R.K.Singh, P.W.-6 Inspector Jitendra Singh Parihar and P W.-7 S.I. Mujahid Ali.
Defence produced medical report of injuries caused to the accused, Gurudeen in the incident and examined Dr. V.N. Tiwari who proved injury report of Gurudeen.
5. Trial Court after marshalling evidence came to the conclusion that FIR was not true account of the incident but was written after deliberation and employing legal brain inasmuch as the complainant's son was lawyer practicing in the Tehsil Court where the complaint was alleged to have been scribed by one Ram Tirath. Trial court was also of the view that in the FIR place of incident was not mentioned. However, P.W.-1, the complainant in his cross examination said that the incident took place near the house of Ramdeo and said that he gave the statement to that effect to the investigating officer. The Investigating Officer in his examination specifically said that the complainant in his statement under Section 161 Cr.P.C. did not tell him the place of incident neither he tried to ascertain from the complainant, the place of incident. P.W.-1 in his further cross examination said that the incident took place near a primary school and his tube well would be 1 km from the place of incident. Even in the site map (Exh.Ka25), place of incident was shown near primary school which was 50 ft., away from the house of Ramdeo. In view thereof, Trial Court concluded that the prosecution had failed to prove the exact place of incident.
6. Trial Court also came to the conclusion after analyzing the evidence on record that P.W.-1 was not an eyewitness. P.W.-1 said that he went out of his house at 3:30 P.M. and he did not know when his wife, Rajdei went out from the house on the same day. Rajdei was the person with whom the accused, Gurudeen had altercation and it was alleged that he snatched the sickle from her and assaulted her. P.W.-2 in his statement said that on the date of incident he was not with P.W.-1 and he met him on the next day in the hospital. He also said that he did not know where P.W.-1 was at the time of incident.
7. P.W.-1 in his statement further said that he did not receive any injury in the incident whereas in his medical report (Exh.Ka-16) a lacerated wound was mentioned. Rajdei was not examined with whom it was alleged that altercation of the accused, Gurudeen took place and she was assaulted. It was also said that she received gun shot injuries in the incident. Her medical report (Exh.Ka-8) would show that she received only one injury and she did not have any other injury though it was alleged that she was beaten up by sickle and kicks and fists. Rajdei was an important witness regarding the genesis of the incident which was withheld by the prosecution. It was also said that the witnesses' residences were away from the place of incident and, therefore, it became the duty of the prosecution to explain how they arrived at the place of incident from a distance of 0.5-1 km. Trial Court was also of the view that there were glaring contradictions between the statements of the witnesses and medical report and did not believe that the deceased gave statement under Section 161 Cr.P.C. before death to the Investigating Officer.
8. According to P.W.-1, deceased, Jiana Devi became unconscious and was taken to the hospital in that state. P.W.-2 in his statement said that his mother became unconscious after receiving gun shot injuries and thereafter, she did not regain consciousness and, therefore, under these circumstances recording of her statement under Section 161 Cr.P.C. is neither believable nor credible. Trial Court was also of the opinion that inquest proceedings and injury report of the accused were suspicious and doubtful. Trial Court further held that accused, Gurudeen had received nine injuries and injury Nos.1 to 3 were not superficial. Prosecution was under duty to explain the injuries caused to the accused. In view of the non explanation of the injuries of the accused, Gurudeen by the prosecution, prosecution case became incredible and doubtful. The prosecution did not come with true and correct facts.
9. In view of the aforesaid, it was held that the prosecution had failed to prove the case against the accused beyond reasonable doubt. Trial Court in view of the aforesaid findings had acquitted all the accused of the charges.
10. Heard Mr. Sushil Kumar Singh, Advocate assisted by Mr. Balkeswar Srivastava, learned counsel appearing for accused-respondents and learned A.G.A for the State. No one has put in appearance on behalf of the revisionist.
11. This case was listed on 17.10.2019 when counsel for the revisionist sought adjournment on the ground of his ill health. The case was adjourned and directed to be listed on 24.10.2019 peremptorily. Thereafter, case was listed on 24.10.2019, 07.11.2019, 14.11.2019, 19.11.2019, 02.12.2019, 11.12.2019, 16.12.2019, 06.01.2020 but the learned counsel for the revisionist did not put in appearance on any of the aforesaid dates despite the case having been listed peremptorily.
12. Mr.Sushil Kumar Singh, learned counsel for the respondents-accused has submitted that in exercise of the revisional power by the High Court under Section 397/401 Cr.P.C., it can call for record from any of the inferior criminal courts and examine correctness, legality, propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and to pass appropriate order(s). Revisional power of the High Court is to see that justice is done in accordance with recognized rules of criminal jurisprudence and that its subordinate courts do not exceed the jurisdiction or abuse the power vested in the Cr.P.C. or to prevent abuse the power of process of the inferior court or to prevent miscarriage of justice.
13. When revision is filed against the order of acquittal, High Court can interfere where findings arrived at by the trial Court are without considering the material evidence on record or where the trial court has wrongly turned down evidence which the prosecution wished to produce. He has further submitted that in revision against acquittal reappreciation of the evidence in High Court is not permissible. Revisional Court can interfere in order of acquittal when there is legal infirmity or patent illegality in conduct of the trial by the lower Court.
14. He has further submitted that there is material contradiction in the FIR and the evidence. The prosecution failed to explain nine injuries on the accused, Gurudeen and did not come out with correct genesis of the case. There being material contradictions between P.W.-1 and P.W.-2 and the testimony of ocular witness and medical evidence, Trial Court rightly held that the prosecution had failed to prove the case against the accused beyond reasonable doubt.
15. He has, therefore, submitted that in case like this where the accused had received nine injuries and there was no mention either in the FIR or in the charge-sheet in respect of the injuries suffered by accused, Gurudeen, non explanation of the injuries caused to the accused, Gurudeen by the prosecution had been rightly held to be fatal to the prosecution case by the Trial Court. He has, therefore, submitted that this Court in exercise of powers vested under Section 397/401 Cr.P.C. should not interfere with the findings recorded by the Trial Court inasmuch as the findings arrived at by the Trial Court are neither perverse nor palpably wrong. There was no error or defect in law or procedure or appreciation of the evidence and, therefore, there is no ground to interfere with the well reasoned judgment and order of acquittal passed by the Trial Court. He has, therefore, submitted that this Court should dismiss the revision.
16. I have considered the submissions advanced by learned counsel for the accused-respondents and perused lower Court record and impugned judgment and order carefully.
17. Prosecution case is that Gurudeen had commented on Rajdei that where was Indira Gandhi going and this led to altercation and Gurudeen started assaulting Rajdei snatching sickle from her and giving her kicks and fists blows. Rajdei was not examined. A number of persons from the complainant side got collected at the place of incident to rescue, Rajdei. Accused, Gurudeen had lodged a cross case at Case Crime No.243-A of 1999 under Sections 147, 149, 323, 504, 506, 308 IPC. He was examined on the same day i.e. 04.07.1999 by Dr.B.N. Tiwari who noticed following injuries on the body of Gurudeen:-
"(i) one lacerated wound on skull 4 cm x .5 cm x scalp deep bleedings present; 10 cm above from occipital probability
(ii) one lacerated wound on skull 2 cm x .5 cm x scalp deep; 5 cm away towards right injury No.(i)
(iii) one contusion on occipital protuberance 3 cm x 2 cm red in color.
(iv) one lacerated wound on right face 2 cm x .5 cm x skin deep; 1.5 cm below from right eyelid
(v) one abrasion on left shoulder 2 cm x 3.5 cm.
(vi) one red contusion on right shoulder 13 cm x 2.5 cm.
(vii) one red contusion of right arm 6 cm x .5 cm; 4 cm above from elbow front
(viii) one red contusion on left arm 11 cm x 2 cm; 8 cm below from left shoulder joint
(ix) one red contusion in front of right thigh 10 cm x 2.5 cm; 10 cm above from right knee joint."
18. Some of the injuries particularly injury Nos.1 to 3 were grievous in nature and Dr.V.N.Tiwari who examined him had said that the injuries were fresh in nature which could have been caused by hard object like lathi and those injuries would have been caused at around 4:00 P.M. on 04.07.1999.
19. Specific suggestion was put to P.W.-2 that he and others from the complainant side assaulted the accused, Gurudeen by lathi in which he received grievous injuries on his head and other parts of the body. On alarm being raised by accused, Gurudeen, other persons reached there and in order to save him one shot was fired which hit the deceased, Jiana, and other persons received pallet injuries.
20. It is well settled law that prosecution owes a duty to explain serious and grievous injury on the accused during the course of incident which gives rise to prosecution of the accused. If the prosecution has failed to explain the injuries on the accused, the case of the prosecution becomes doubtful as the prosecution has not come out with true facts regarding genesis of the incident/occurrence.
21. The Supreme Court in the case of Onkarnath Singh v. State of U.P., (1975) 3 SCC 276 in para 36 has held as under:-
"36. Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises."
22. The Supreme Court in the case of Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 in para 12 has held as under:-
"12. PW 8 Dr S.P. Jaiswal who had examined Brahmdeo deceased and had conducted the post-mortem of the deceased had also examined the accused Dasrath Singh, whom he identified in the court, on April 22, 1966 and found the following injuries on his person:
"1.Bruise 3″ × ½ ″ on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the middle.
2.Incised wound 1″ × 2 mm × skin subcutaneous deep on the lateral part of the left upper arm, near the shoulder joint.
3.Punctured wound 1/2″ × 2 mm × 4 mm on the lateral side of the left thigh about 5 inches below the hip joint.
According to the doctor Injury 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor is it believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eyewitnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar [AIR 1968 SC 1281 : (1968) 3 SCR 525 : 1968 Cri LJ 1479] tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows:
"The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of PW 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries ... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants."
This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. State of Punjab [(1975) 4 SCC 518 : 1975 SCC (Cri) 608] which was also a murder case, this Court, while following an earlier case, observed as follows: [SCC p. 531 : SCC (Cri) p. 621, para 20] "In State of Gujarat v. Bai Fatima [(1975) 2 SCC 7 : 1975 SCC (Cri) 384] one of us (Untwalia, J.) speaking for the Court, observed as follows: [SCC p. 13 : SCC (Cri) p. 390, para 17] In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four-corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case."
It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
"(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima [(1975) 2 SCC 7 : 1975 SCC (Cri) 384] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."
23. The Supreme Court in the case of State of Karnataka v. Jinappa Payappa Kudachi, 1994 Supp (1) SCC 178 in para 6 has held that normally non explanation of injuries on the accused persons would mean that the prosecution has not come out with whole truth particularly regarding the genesis of the occurrence and the prosecution evidence should be rejected.
Para 6 of the aforesaid judgment reads as under:-
6. The effect of non-explanation by the prosecution about the injuries on the accused persons depends on the facts and circumstances of each case. Normally if there is such non-explanation, it may at the most give scope to argue that the accused had the right of private defence or in general that the prosecution evidence should be rejected as they have not come out with the whole truth particularly regarding the genesis of the occurrence. In the instant case, the occurrence took place in the bus itself at the Bastwad cross. A-1 to A-6 admitted their presence and also admitted their participation. The evidence of the injured witnesses amply establishes that these six accused participated in the occurrence causing the death of the three deceased persons and causing serious injuries to PWs 1, 3, 4 and 6.
24. The Supreme Court in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145 has held that when the accused sustain injuries in a same occurrence, prosecution is obliged to explain the injury. However, the Court has to be satisfied of the existence of two conditions before non explanation of the injuries on the persons of the accused may affect the prosecution case. Two conditions are (i) that the injury on the person of the accused was of a serious in nature; (ii) that such injuries must have been caused at the time of occurrence in question.
Para 17 of the said judgment reads as under:-
"17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singh v. State of Bihar [(2000) 4 SCC 298 : 2000 SCC (Cri) 796] , Ram Sunder Yadav v. State of Bihar [(1998) 7 SCC 365 : 1998 SCC (Cri) 1630] and Vijayee Singh v. State of U.P. [(1990) 3 SCC 190 : 1990 SCC (Cri) 378] , all three-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case."
25. Thus, non explanation of the injuries sustained by the accused at the time of occurrence or in the course of transaction/occurrence is a very important circumstance. But mere non explanation of injuries by the prosecution may not affect the prosecution case if evidence is clear, cogent and creditworthy. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy which outweighs the effect of the omission on the part of prosecution to explain the injuries as held by the Supreme Court in the case of Rizan v. State of Chhattisgarh (2003) 2 SCC 661.
23. Similar view has been taken by the Supreme Court in the following cases:-
(i) (2000) 1 SCC 621Padam Singh v. State of U.P., (2000) 1 SCC 621;
(Ii) (2003) 9 SCC 426 M.P. v. Mishrilal;
(iii) (2004) 7 SCC 408Dashrath Singh v. State of U.P.;
(iv) (2005) 12 SCC 657 Bishna vs State of West Bengal; and
(v) (2006) 9 SCC 57Nagarathinam v. State
24. In the present case, the accused, Gurudeen received grievous injuries in the occurence. Two witnesses who were examined, were interested witnesses. No independent witness was examined. The case of the prosecution was not proved by leading cogent and trustworthy witnesses. Non explanation of the injuries on the person of accused, Gurudeen became important and assumed significance. Neither in the FIR nor in the charge-sheet, the injuries were mentioned. Thus, the Trial Court rightly assumed that the prosecution did not come out with truth regarding genesis of the occurrence. The prosecution case had become doubtful and, therefore, Trial Court had rightly not believed in the prosecution story and acquitted the accused.
25. Considering the limited scope of the power under Section 397/401 Cr.P.C., I do not find that the Trial Court has committed palpable error of law or facts or it did not rightly appreciated the evidence. In view thereof, the present revision fails and is hereby dismissed.
Order Date:- 06.01.2020 prateek