Sunil Prakash Gaur vs State Of U.P. on 24 August, 2023

[Cites 22, Cited by 0]

Allahabad High Court

Sunil Prakash Gaur vs State Of U.P. on 24 August, 2023

1. The Present Criminal Appeal has been preferred to set-aside the judgment and order dated 23.8.2002, passed by Additional Sessions Judge, Court No. 10, Allahabad in Session Trial No. 259 of 1996 (State Vs. Sunil Prakash Gaur), by which the trial court convicted the appellant under Section 307 of I.P.C. and sentenced him under Section 307 of I.P.C., to undergo five years rigorous imprisonment with fine of Rs. 1,000/-, and in default of payment of fine, three months rigorous imprisonment.

2. Brief facts of the case are that the first information report dated 23.12.1992 was lodged by Junior Engineer of Jal Nigam at 02:45 P.M. stating that at about 01:45 P.M. on the same day, the appellant came to his office with an open can of kerosene oil and asked to prepare his salary. The first informant told him that his salary has been paid for the period he has worked. After hearing these words, the appellant poured kerosene oil upon the first informant and threatened him with dire consequences. He also threw a burning match stick upon the first informant but the first informant fled away from the spot and saved himself. On commotion, R.K. Gupta, R.P. Sharma, Radheyshyam and Indra Mani Tiwari, reached at the spot. Police picket also reached there and brought the appellant to the police station. After completion of investigation, charge sheet was submitted against the appellant and the appellant denied the charge and claimed trial.

3. In order to prove the prosecution case, four witnesses have been examined; PW-1 Pramod Kumar Singh (first informant), PW-2 Radheyshyam Mishra, PW-3 Indra Mani Tripathi and PW-4 S.I. Gorakh Nath Rai. After examining the prosecution witnesses, statement of the appellant was recorded under Section 313 of Cr.P.C., wherein he stated that the prosecution evidence is false and he has been falsely implicated in the present case due to enmity. The appellant has filed attested copy of the judgment and order dated 28.03.2001 passed in Criminal Case No. 4793 of 1999 (State Vs. Sunil Prakash Gaur) under Sections 353, 504, 506 of I.P.C. passed by Special Chief Judicial Magistrate, Allahabad. The appellant did not adduce any other oral or documentary evidence.

4. Before the trial Court, the appellant argued that no recovery memo of can of kerosene oil had been proved by the prosecution. PW-2 Radheyshyam Mishra and PW-3 Indra Mani Tripathi had not seen the appellant pouring kerosene oil upon the first informant. PW-1 is a solitary witness of the incident. PW-2 and PW-3 have not seen the incident of pouring of kerosene oil by the appellant upon the first informant and throwing a burn matchstick upon him. There is material contradiction between the statement of PW-1 Pramod Kumar Singh and other two eye witnesses. It was further argued that the Investigating Officer PW-4 S.I. Gorakh Nath Rai, has not found any kerosene oil over the ground at the time of the inspection of the place of incident.

5. The trial court held that the statement regarding empty can of kerosene oil was recorded in the General Diary, which was proved as Ex.-Ka-5, in which it is mentioned that empty can of kerosene oil along-with the appellant has been brought to the police station. The trial court further observed that PW-2 and PW-3 have reached at the place of incident after pouring kerosene oil upon the first informant and they had never stated that they saw the incident of pouring kerosene oil.

6. The trial court further observed that the appellant had not disputed the fact of the PW-1 that he poured the kerosene oil upon the first informant and threw a burn matchstick upon him as stated in his examination-in-chief.

7. The trial court further observed that the statement of the PW-4 S.I. Gorakh Nath Rai, Investigating Officer has no relevance. It is further observed that after three days of the incident, there was no possibility to found kerosene oil over the ground at the place of incident.

8. Being aggrieved by the trial court's judgment and order, the appellant has preferred this appeal.

9. Learned counsel for the appellant vehemently argued that there is material contradiction between the evidence of PW-1 (first informant) and other eye witnesses (PW-2 and PW-3). In support thereof, it has been pointed out that:

(a) PW-1 has stated that the appellant reached in the office room of the first informant and poured kerosene oil upon him and threw a burn matchstick on him; whereas, PW-2 and PW-3 stated that they had seen the appellant and the first informant quarrelling in the veranda.

(b) PW-1 stated that on commotion, PW-2 and PW-3 had reached the place of incident and they had seen the appellant pouring kerosene oil over him and throwing a burn matchstick; whereas PW-2 and PW-3 have stated that they had not seen the appellant pouring kerosene oil and throwing any burning a matchstick upon the first informant.

(c) As per statement of PW-1, place of the incident is the office of PW-1, which is in the room; whereas the PW-2 and PW-3 stated that they had seen a quarrel between the appellant and PW-1 in the veranda.

(d) PW-1 has stated that the appellant poured kerosene oil upon his clothes, whereas PW-2 and PW-3 had not seen any kerosene upon the cloths of PW-1.

(e) There is no recovery of cloths of the first informant (PW-1), whereas PW-1 has stated that the appellant poured kerosene oil over his cloths, whereas the first informant (PW-1) and police picket have reached the place of the incident and PW-1 lodged the F.I.R. promptly (i.e. within one hour of the incident).

(f) There is no recovery of empty kerosene can by which the appellant poured the kerosene upon the first informant (PW-1).

(g) There is no recovery of kerosene earth or other article which was not taken from the place of the incident. PW-4 the I.O. has stated that the he did not find any kerosene oil over the place of the incident.

10. Per contra; learned A.G.A. for the State defended the impugned judgment and order passed by the trial court and submitted that the appellant has committed a heinous crime. Considering the gravity of the offence, the present criminal appeal is liable to be dismissed.

11. I have heard Sri Rajesh Kumar Singh, learned counsel for the appellant and Sri Ramesh Kumar Singh, learned A.G.A. for the State and perused the material on record.

12. Before I proceed to dwell into the merit of the contention raised before me, it will be appropriate to discuss the scrutiny of entire ocular evidence which is as follows:

13. PW-1 Pramod Kumar Singh, in his examination-in-chief stated that on 23.12.1992, when he was working in the office at about 01:45 P.M., at the same time, the appellant came there with the kerosene oil and asked to prepare his salary but he told him that his salary has been paid for the period he has worked. After hearing these words, the appellant poured kerosene oil over the first informant and threatened him with dire consequences and threw a matchstick upon him but he saved himself. On commotion R.K. Gupta, R.P. Sharma, Radheyshyam and Indra Mani Tiwari, (other office bearers) reached at the spot and police picket also reached there and brought the appellant to the police station along-with a can of kerosene oil.

14. PW-1 stated in his cross-examination that prior to the incident the first informant and the appellant were working together. The appellant was working with first informant since 1983. PW-1 further stated that the Investigating Officer inspected the place of incident on the next date of the incident, but he did not remember when his statement was recorded. The Investigating Officer inspected the place of incident only one time. It is further stated that the at the time of incident, the appellant was not working with him and he had transferred some days before.

15. The following suggestions had been asked as;

It is wrong to say that the salary of 4 to 6 months was due; it is wrong to say that the first informant stopped the bonus of the appellant for two years; it is wrong to say that the service of the appellant was terminated on the recommendation of the first informant. However, it is true that this court has stayed the termination order. It is wrong to say that the first informant got annoyed due to filing of an application by the appellant for the arrears of salary, due to which a false case has been registered.

It is noteworthy that as per evidence of PW-1, the incident took place in his office and the appellant entered into his office with a can of kerosene oil and poured the kerosene oil over his body and threw a matchstick over him, but no fire was enlightened. It is also significant that on commotion, other office bearers PW-2 Radheyshyam Mishra and PW-3 Indramani Tripathi and police had reached the spot immediately and they had seen the incident and F.I.R. was lodged promptly but the cloths of the PW-1 and can of kerosene oil were not taken into possession.

16. PW-2 Radheyshyam Mishra, in his examination-in-chief stated that the appellant was sub-ordinate to the first informant. Prior to 8 years ago at about 02:00 P.M., when he reached in the office of H.C. Gupta, hearing the noise he went to the spot and saw that P.K. Singh (PW-1) and the appellant were arguing and quarrelling. He also saw that the kerosene oil was spread on the floor of office below the table of P.K. Singh. When the appellant tried to escape, people surrounded him and brought him to Colonelganj police station.

17. PW-2 has stated in his cross-examination that he saw the appellant and first informant arguing each other in the portico (veranda). He did not hear that the appellant has asked to prepare his salary and he was not present in the room at the time of incident. The appellant was working as sub-ordinate to PW-1 at the time of the incident.

Having gone through the evidence of PW-2, the witness saw the appellant and the first informant in the portico (veranda) but he did not reach the place of incident. The witness saw kerosene oil below the table but it is significant that there is material contradiction between the statement of the PW-1 and PW-2. Firstly, he has stated in his examination-in-chief that he reached at the place of incident (office situated in a room) and saw a manhandling between the appellant and the first informant; whereas in his cross-examination he has stated that he saw the appellant and the first informant in the veranda.

It is significant that witness had not seen any kerosene soaked clothes of the first informant and also did not see the fire burning in the office. It is significant that PW-2 did not see any act of pouring kerosene oil and throwing a burn matchstick upon the first informant and PW-2 stated that at the time of the incident, the appellant was sub-ordinate to the first informant but PW-1 has stated that the appellant was not working with him at the time of the incident.

18. PW-3 Indramani Tripathi, in his examination-in-chief stated that the appellant was sub-ordinate to P.K. Singh (PW-1) on the date of incident. Prior to 9 years ago at about 02:00 P.M. hearing the noise, he went to the spot and saw that P.K. Singh, and the appellant were arguing and quarrelling for preparing salary and kerosene oil was spread on the floor of office below the table of P.K. Singh. After that police came and brought the appellant to police station.

19. PW-3 in his cross-examination stated that he was not present in the room. He went along with first informant to the police station. His statement under Section 161 of Cr.P.C. was recorded after one month of the incident. No article was recovered from the spot. The salary of the appellant got prepared on the basis of recommendation of the first informant and the appellant was sub-ordinate of the first informant.

It is noteworthy that in examination-in-chief, this witness has stated that he reached at the place of incident (room) where hot talks were exchanged between the appellant and first informant and the kerosene oil were spread over the table and below the table. At the time of incident, he was not present in the room and no article was recovered from the place of incident. There is no dispute with regard to reaching in the room of this witness (PW-3). PW-3 had not seen any fire or burning matchstick or kerosene soaked clothes of the first informant.

It is significant that PW-2 and PW-3 reached immediately after the incident but they had not seen any kerosene oil over the cloths of the first informant.

20. PW-4 S.I. Gorakh Nath, has investigated the case and during the investigation, he noted the statement of witnesses and prepared the site map which is Ex-Ka-2 and also submitted the charge sheet against the appellant in the court, which is Ex-Ka-3.

21. PW-4 S.I. Gorakh Nath, in his cross-examination stated that the F.I.R. was not lodged in his presence. The statement of the first informant was recorded on the same day of the lodging of the F.I.R. On 26.12.1992, he had gone for inspection. At the time of the inspection, the kerosene oil was not found there.

It is significant that the statement of PW-4 was recorded by the Investigating Officer on the same day, but kerosene soaking cloths were not taken into possession by the Investigating Officer. It is significant that the Investigating Officer had not taken any kerosene soaking earth or simple earth from the place of incident.

22. PW-1 first informant/ injured has stated that the appellant was not his sub-ordinate at the time of incident; whereas PW-2 and PW-3 stated in their cross-examination have stated that the appellant was under administrative control of the PW-1. There is inconsistency between the statement of PW-1, PW-2 & PW-3 with regard to motive of the incident.

23. Having noticed the contentions of learned counsel for the parties and having taken a glimpse of the evidence on record, now I shall weigh the argument of learned counsel for the appellants that there is contradiction with regard to motive of the inicident.

24. Now I shall proceed to examine contradictions and omissions in the testimony of the witnesses which have been highlighted during the course of arguments. There are following material contradiction between the testimony of the witnesses:

(a) PW-1 has stated that the appellant reached in the office room of the first informant and poured kerosene oil upon him and threw a burn matchstick on him; whereas, PW-2 stated that they had seen the appellant and the first informant quarrelling in the veranda and PW-2 stated that he was not present in the room at the time of the incident.

(b) PW-1 stated that on commotion, PW-2 and PW-3 had reached the place of incident and they had seen the appellant pouring kerosene oil over him and throwing a burn matchstick; whereas PW-2 and PW-3 have stated that they had not seen the appellant pouring kerosene oil and throwing any burning a matchstick upon the first informant.

(c) As per statement of PW-1, place of the incident is the office of PW-1, which is in the room; whereas the PW-2 stated that they had seen a quarrel between the appellant and PW-1 in the veranda.

(d) PW-1 has stated that the appellant poured kerosene oil upon his clothes, whereas PW-2 and PW-3 had not seen any kerosene upon the cloths of PW-1.

(e) There is no recovery of cloths of the first informant (PW-1), whereas PW-1 has stated that the appellant poured kerosene oil over his cloths, whereas the first informant (PW-1) and police picket have reached the place of the incident and PW-1 lodged the F.I.R. promptly (i.e. within one hour of the incident).

(f) There is no recovery of empty kerosene can by which the appellant poured the kerosene upon the first informant (PW-1).

(g) There is no recovery of kerosene earth or other article which was not taken from the place of the incident. PW-4 the I.O. has stated that the he did not find any kerosene oil over the place of the incident.

25. As to what would be the consequence of such discrepancy in the testimony of the eye-witnesses, it would be useful to notice few decision of the Apex Court. In Yogesh Singh v. Mahabeer Singh and Others, (2017) 11 SCC 195, the Apex Court has observed as under; (SCC p. 212, para 29) "29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor constradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission." (See: Rammi @ Rameshwar v. State of M. P.1; Leela Ram (dead) through Duli Chand v. State of Haryana & Anr.2; Bihari Nath Goswami v. Shiv Kumar Singh & Ors.3; Vijay @ Chinee v. State of Madhya Pradesh4; Sampath Kumar v. Inspector of Police, Krishnagiri5; Shyamal Ghosh v. State of Bengal6 and Mritunjoy Biswas v. Pranab @ Kuti Biswas and Anr.7)

26. In Balaka Singh and Others v. State of Punjab, AIR 1975 SC 1962, the Apex Court observed:

"8...It is true that, as laid down by this Court in Zwinglee Arivel v. State of Madhya Pradesh8, and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply..."

27. In Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614, the Apex Court held that if the testimony of a sole witness is found by the court to be entirely reliable, there is no legal impediment in recording the conviction of the accused on such proof. It has been further laid down that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. A similar view has been expressed in Kusti Mallaiah vs State of A.P.9, Lallu Manjhi and Anr. v. State of Jharkhand10, Jhapsa Kabari and Ors. v. State of Bihar11.

28. There are several lapses in the investigation of the case like non-recovery of kerosene can, kerosene soaked cloths of PW-1 and kerosene earth and simple earth from the place of the incident. However, it is well-settled that any omission on the part of the Investigating Officer cannot go against the prosecution case if it is otherwise supported by reliable and credible evidence. In C. Muniappan and Ors. v. State of Tamil Nadu, AIR 2010 SC 3718, the Apex Court observed as under;

"The defect in the investigating by itself cannot be ground for acquittal. If primacy is given to such designed or negligent investigation or to the omissions or lapses be perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."

29. Thus the prosecution cannot be doubted merely on the ground of non-recovery of can of kerosene oil, kerosene soaking earth or simple earth from the place of incident and kerosene soaking cloths of the first informant/ injured PW-1 but in the present case PW-1 had reached the police station immediately after the incident without changing the clothes F.I.R. was lodged by him and the Investigating Officer PW-4 has recorded the statement of the first informant on the same day and there was ample opportunity to recover the articles noticed above.

30. The prosecution has not proved the recovery of the can of kerosene oil. The Investigating Officer did not found any kerosene oil at the place of incident at the time of inspection. There is material contradictions between the evidence of PW-1 and the evidence of PW-2 and PW-3. As per prosecution case, police personnel came at the place of incident but no independent witness was examined regarding the same fact.

31. On a totality of the consideration of entire evidence and keeping in mind the settled position of law, I am unhesitatingly of the opinion that the testimony of eye-witnesses PW-1 Pramod Kumar Singh, PW-2 Radheyshyam Mishra, PW-3 Indra Mani Tripathi and PW-4 S.I. Gorakh Nath Rai, is unreliable. In support of this conclusion regard be had to the following circumstances:

(i) Despite lodging the F.I.R. immediately after the incident, kerosene soaking cloths of the first informant and can of kerosene oil were not recovered.

(ii) As per prosecution case, not a single article was burnt in the incident and PW-2 and PW-3 have not stated anything with regard to seeing the incident of pouring kerosene oil.

(iii) There is material contradiction between the statement of PW-1, PW-2 & PW-3 with regard to place of incident.

(iv) There is material contradiction in the evidence of PW-1, who stated that PW-2 and PW-3 had reached the place of incident and they saw the incident; whereas PW-2 stated that they had seen the appellant and the first informant in the Varanda.

(v) No kerosene soaking earth and simple earth were recovered from the place of incident. PW-4 Investigating Officer had stated that he did not see any kerosene oil over the place of incident at the time of inspection.

32. The contrary view taken by the trial court is against the weight of the evidence. I hardly find objective evaluation, analysis, or scrutiny of evidence in a proper perspective. The serious infirmities pointed out by the defence raising doubt with regard to the prosecution case have been brushed aside by the learned trial judge. The trial court, in my view, was not right and justified in lightly brushing aside the contradictions and omissions borne out from the prosecution evidence, that too, when the entire prosecution rested on a sole eye-witness, PW-1 Pramod Kumar Singh.

33. For all the reasons recorded and discussed above, I am of the considered view that the prosecution has failed to prove the charge of offence punishable under Section 307 of I.P.C. against the appellant Sunil Prakash Gaur beyond reasonable doubt. As the evidence on record does not bring home the guilt of the appellant beyond the pale of doubt, the appellant is entitled to the benefit of doubt. Consequently, the appellant is entitled to be acquitted of the charge for which he was tried.

34. As a result, criminal appeal is allowed. The judgment and order of conviction as well as sentence recorded by the trial court dated 23.08.2022 is set aside. The appellant is acquitted of all the charges. The appellant is on bail, therefore, his personal bonds and sureties are hereby discharged. The appellant Sunil Prakash Gaur will fullfill the requirement of section 437-A Cr.P.C. to the satisfaction of the trial Court at the earliest.

35. The trial court record be returned forthwith together with a certified copy of this judgment for compliance. The office is further directed to enter the judgment in compliance register maintained for the purpose of the Court.

(Sanjay Kumar Pachori, J.) Dated: 24.8.2023 Ishan

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