State of Uttar Pradesh v. Gauri Shankar — 1992 DIGILAW 464 (ALL)

G. D. DUBE, J, J. ( 1 ) NINTEEN persons were tried by the Second Additional Sessions Judge, Basti for the offences punishable under sections 148, 302, 307, 324 and 436 I. P. C. (last four read with section 149, I. P. C. ). The trial court acquitted all of them. Aggrieved by this order, the present appeal has been filed by the State of U. P. ( 2 ) IN her report lodged at 2-30 P. M. on 13. 8. 1976 at Police Station Kaptanganj, District Basti, Smt. Kailashpati resident of village Barhani within the above police-station circle has made accusation against the respondents. She alleged that there was dispute between her husband Bhola and Jhinkan and Gauri Shankar about a field. In this dispute, Chandra Maul son of Gauri Shankar had lodged a report. On account of this report, Bhola and his collaterals were sent to jail. The respondents were on the look out to kill the family of Bhola. It is alleged that at about later part of the night between 12th and 13th August, 1975, the respondents Jhinkan alias Girja Shankar, Gauri Shankar, Ram Jiawan and Badioo Singh armed with guns, Ram Milan, Chandra Shekhar, Ram Awadh Gur Dutt, Manzoor, Laxmi, Girish, Jagdish, Chandra Maul and Chandra Mani armed with Pharsas, Jagdamba, Sita Ram and Manik Chand armed with spears, Jhinkan and Rudra Nath armed with lathi along with eight to ten unknown persons of village Italia, came to the house of Smt. Kailashwati. Surya Datta Tripathi, Block Pramukh, Kaptanganj armed with pistol was also there. The persons holding guns and pistols were firing at the spot. These persons started assaulting Bhola, Pal too and Shiv Sahai with lathis, Pharsas and spears. They put fire to Charni. They stopped assaulting Shiv Sahai after being satisfied that he was dead. The accused said that as Sheo Sahai has been finished they should take Bhola and Paltoo towards the out-skirts of the village. The miscreants carried Bhola and Paltu. The reporter had stated that a lantern was burning in front of the house. On an alarm, Ram Lal, Bhokai, Ram Narain, Banarsi, Jiawan, Gaun Shanker, Prem Narain, Rambodh and several others had arrived. The witnesses followed the miscreants who were taking Bhola and Paltu. They took them to outskirts of the village and chopped the leg of Paltu and caused injuries to Bhola with pharsas, lathis and spears. On an alarm, Ram Lal, Bhokai, Ram Narain, Banarsi, Jiawan, Gaun Shanker, Prem Narain, Rambodh and several others had arrived. The witnesses followed the miscreants who were taking Bhola and Paltu. They took them to outskirts of the village and chopped the leg of Paltu and caused injuries to Bhola with pharsas, lathis and spears. Thinking that these persons have died, the assailants went away. They had fired towards the witnesses warning that they should not come near them. It was stated in the First Information Report that, at the place of occurrence, an empty cartridges case and a broken part of a gun, on which No. 3229 is written, was found. It was urged that the assailants had blocked the passage of the complainant and that is why she could not come to the police station early. However, the injured were taken to District Hospital on rickshaws. ( 3 ) BHOLA, Paltu and Sheo Sahai were examined at 9-30 A. M. , 10. 15 a. m. and 10. 45 a. m. respectively by Dr. R. V. Pandey of District Hospital, Basti. The injuries found by the doctor on the persons of each of the assailants have been noted in detail in the judgment of the trial court. It is not necessary to repeat them in this judgment. ( 4 ) AFTER lodging of the report, the investigation of the case had been taken up by Rajendra Pathak (P. W. 7) who was Station Officer of the police-station. He interrogated the witnesses at the spot and prepared site-plan. He took sample of ash from the Charni of Paltu which had been burnt by the miscreants. After other necessary investigation, the charge-sheet had been submitted against the respondents. ( 5 ) BHOLA had died in the hospital. The inquest proceedings on his dead-body had been conducted by a Sub-Inspector of Police-station Kotwali. The dead-body had been sent to the mortuary for post-mortem. Dr. D. P. Mukerji (P. W. 8) had conducted the post mortem at 2. 00 p. m. on 14. 8. 1975. The doctor had found same injuries as were noted in the injury report (Ext. Ka-19 ). The doctor had opined that the deceased had died due to shock and haemorrhage as a result of multiple injuries. ( 6 ) THE prosecution had examined eight witnesses. 00 p. m. on 14. 8. 1975. The doctor had found same injuries as were noted in the injury report (Ext. Ka-19 ). The doctor had opined that the deceased had died due to shock and haemorrhage as a result of multiple injuries. ( 6 ) THE prosecution had examined eight witnesses. Out of these witnesses, P. W. 1 Smt Kailashwati, P. W. 2 Paltu and P. W. 3 Gauri Shanker were eye witnesses. Ram Singar Singh Constable (P. W. 4) had taken the dead-body of Bhola to the mortuary. P. W. 5 R. S. Shukla had registered the case at Police-station Kaptanganj. Ram Bodh (P. W. 6) is scribe of the report. He had not supported the prosecution story. He had, however, stated that another draft (Ext. Kha-1) was prepared before the lodging of the report. In this report, a fact about the dacoity in the night of the occurrence was said to have been committed in the house of Smt. Kailashwati. The role of P. Ws. 7 and 8 have already been indicated above. ( 7 ) THE accused had pleaded not guilty to the charges. They had not produced any witness in defence. After appraising the evidence, the learned Sessions Judge came to the conclusion that probably a dacoity was committed in the house of Smt. Kailashwati and a colour of murder was given to this case. The learned Sessions Judge disbelieved the prosecution witnesses. On the above findings, the learned Sessions Judge had acquitted the respondents. ( 8 ) IT has been argued by learned counsel for the State that Smt. Kailashwati and two other witnesses were giving a vivid description of the occurrence. Out of these witnesses, Paltu (P. W. 2) is an injured witness. His presence cannot be doubted. It was urged that there is no inherent discrepancy in the statements of Paltu and other eyewitnesses from which it could be said that the witnesses were stating incorrect facts. ( 9 ) LEARNED counsel for the respondents urged that the injuries on the person of a witness guaranteed only this much that the witness was present on the spot. This does not mean that whatever this injured witness is stating is correct. His evidence has to be scrutinised carefully and if it is found that the witness was not stating correct facts, then even the statement of the injured witness can be disbelieved. This does not mean that whatever this injured witness is stating is correct. His evidence has to be scrutinised carefully and if it is found that the witness was not stating correct facts, then even the statement of the injured witness can be disbelieved. ( 10 ) WE have gone through the evidence on record. There is no explanation for the undue delay in the lodging of the report. Only this much has been stated in the First Information Report that the accused had been blocking the passage to the police-station. Hence a delay had occurred in the report. This explanation does not appeal to reason. If the complainant party could have taken the injured to the District Hospital so that they could be examined at 9. 30 a. m. on the following morning, then the report could be lodged at Police-station Kotwali in the city of Basti. ( 11 ) IN Thulia Kali v. State of Tamil Nadu, it was stated that First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating oral evidence adduced at the trial. The importance of the report can hardly be over-estimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence like murder is to obtain early information regarding the circumstances in which the offence Was committed, the names of the accused culprits and the parts played by them as well as the names of the witnesses. The delay in lodging of the First Information Report quite often results in embellishment which is quite often a creature of afterthought. ( 12 ) IF the report (Ext. Ka-8) is viewed in light of the propositions laid down, if would appear that the long report of Smt. Kailashwati was a result of some consultation and an after-thought. The necessary material for considering the report as a result of an after-thought has been furnished by the reporter Smt. Kailashwati herself. She admitted that she does not know the names of the fathers of all the twenty accused named by her in the report. She was asked to tell the name of father of Badlu Singh accused. She was not able to tell the name even though she took sometime to think in the lower court. She admitted that she does not know the names of the fathers of all the twenty accused named by her in the report. She was asked to tell the name of father of Badlu Singh accused. She was not able to tell the name even though she took sometime to think in the lower court. ( 13 ) AMONGST the eye witnesses Rambodh P. W. 6 had not supported the prosecution story. He was the scribe of the report. In cross-examination he had stated that another report Ext. Kha 1 had been scribbled prior to Ext. Ka 1. In this Ext. Kha 1 a narration about commission of dacoity was made. This Ext. Kha 1 had come from the possession of the respondent. It was argued by the learned counsel for the State that it was not at all difficult for the defence to get any report prepared in order to give a different colour to the prosecution story. There was no reason as to why the earlier report will go in possession of the respondents. Since Rambodh had become hostile to the prosecution he could have easily fabricated Ext. kha. 1. We have closely scrutinised Ext. kha 1. There is no usual narration of addressing this report to the Station officer of the police station concerned. There appears to be adequate force in the contention of the learned counsel for the State that Rambodh had fabricated Ext. Kha 1. ( 14 ) A very pertinent aspect of the occurrence is worth consideration in this case. If the respondents had actually come for committing murder then there was no necessity of carrying two persons namely; Bhola and Paltu towards out skirts of the village. The miscreants were more than 30 in numbers. It was argued by the learned counsel for the State that Bola and Paltu were assaulted with utmost cruelty for taking revenge at the outskirts of the village. This argument is also not tenable under the circumstances of the case. The assailants were outnumbering the victims and their family members. The revengeful attitude would have been very fruitful in front of the door of the victim than assault in a lonely place at the out skirts of the village. This argument is also not tenable under the circumstances of the case. The assailants were outnumbering the victims and their family members. The revengeful attitude would have been very fruitful in front of the door of the victim than assault in a lonely place at the out skirts of the village. ( 15 ) THE prosecution has examined only Kailashwati P. W. 1 who is the wife of the deceased, Paltu who is the victim of the occurrence and Gaurishanker P. W. 3. Paltu is the brother of Bhola deceased. Thus he is closely related with Smt. Kailashwati. At best Gaurishanker may be treated as an independent witness. The cross-examination shows that he is a partisan witness and also inimical to the accused. This witness admitted in his cross-examination that in a case u/s. 307, I. P. C. he was an accused with Paltu P. W. 3 and Shiv Sahai. He had filed objection against Gaurishankar about a piece of land in front of his house. He had also admitted that he had been a witness against Ram Milan respendent from the side of Rampher. Ram Milan had lodged a report against Rampher about a theft. This witness is not an independent witness. ( 16 ) BOTH the eye witnesses have stated that a large number of persons had followed the assailants when they were taking Bhola and Paltu. None of these witnesses have been examined in this case. ( 17 ) IN Lakhan Singh v. State of U. P. , it was held that if persons residing around the place of occurrence are not examined and only interested persons either related or whose houses are at some distance come forward to give evidence then no implicit reliance can be placed on such witness. ( 18 ) IN Awadhesh v. State of M. P. , it was held that where incident took place in a busy public place then prosecutions failure to examine independent witnesses makes its case doubtful. ( 19 ) THE witnesses are making omnibus statements about the occurrence. It is noteworthy that some of the assailants were armed with pistol also. If they had come with an intention to kill then they would not have enacted the whole drama of firing blank shots at the spot and then assaulting the victim with other weapons. ( 19 ) THE witnesses are making omnibus statements about the occurrence. It is noteworthy that some of the assailants were armed with pistol also. If they had come with an intention to kill then they would not have enacted the whole drama of firing blank shots at the spot and then assaulting the victim with other weapons. The number of injury on the prosecution side are far less than the number of assailants in this case. Bhola had 25 injuries; Paltu had 10 injuries and Shiv Sahai had 13 injuries. Out of these injuries 13 injuries are abrasion which could be caused by fall on the ground. In this way all the injured had only 35 injuries which could be caused by the assailants. It is noteworthy that the assailants had committed the crime with a great ease and without any fear of apprehension. In these circumstances causing of only 35 injuries by more than 30 persons itself speaks that prosecution witnesses are making omnibus statements. ( 20 ) IN State of UP. v. Motiram, it was observed by the Supreme Court that sustaining of the injuries by witnesses prabablises his presence at or about the time occurrence at the scene. The evidence of an injured witness commands acceptance provided the same inspires confidence and is free from any infirmity. ( 21 ) PALTU had stated that he had told the name of accused who had carried him from the place of occurrence to the outskirt of the village to the Investigating officer. The name of such accused persons who had carried him from the place of occurrence was disclosed for the first time in the trial court. These names are absent from the statement under section 161 of the Code of Criminal Procedure. When this witness was asked to state as to why these names are absent in his statement u/s 161 Cr. P. C. then this witness stated that probably in order to help the accused the investigating officer has not written their names. ( 22 ) PALTU stated in cross-examination that when the assailants reached in the Chak of Sidhnarain, Girja Shanker told Gaurishanker that he should take revenge by killing them. Thereafter both of them gave their fire-arms to Chandra Maul and Chandramani and took Pharasa from them. ( 22 ) PALTU stated in cross-examination that when the assailants reached in the Chak of Sidhnarain, Girja Shanker told Gaurishanker that he should take revenge by killing them. Thereafter both of them gave their fire-arms to Chandra Maul and Chandramani and took Pharasa from them. Thereafter Girija Shanker gave some blows from the blunt end of the Pharsa and told that in this way the victim should be tortured to death. Thereafter Girja Shanker, Gauri Shanker, Ram Kishun and Chandra Shekhar gave blows of lathi and from the blunt end of Pharsa. The injury of Paltu shows that there were only 10 injuries. Injury Nos. 3,6,8,9 and 10 were abrasion. Injury No. 1 was incised wound 8 cm x 0. 5 cm bone deep on front of head 7 cms above root of the nose. There was a traumatic swelling 9 cms. x 6 cms. on back and lower part right forearm. There was another traumatic swelling 10 cms x all round lower part right leg 7 cms. above right ankle. One lacerated wound was present measuring 0. 5 cm x 0. 2 cm x skin deep on outer part right thigh 9 cms. above knee. The last lacerated wound was 5 cms. x 2. 5 cms. x bone deep. Bone piece was coming out medial part left leg-11 cm. above right knee. When the injuries are examined in the light of the statement of the witness given above then it does not appear that Girija Shanker and Gauri Shanker had assaulted this witness in the manner as demonstrated by them. In the circumstances mentioned above the injuries on the person of Paltu should have been more than what was found by the doctor. The manner of assault stated by him does not explain the incised wound found on his head. It appears that Paltu is giving concocted and exaggerated account of the occurrence. He is not coming forward with a truthful version. ( 23 ) THE seat of injuries on the person of Paltu are compatible with the version of defence that actually dacoity had taken place in the house of Bhola and Bhola and Paltu had received injuries while they were chasing the dacoits. We do not find statement of Paltu inspiring any confidence. ( 24 ) SMT. Kailashwati had narrated in the First Information Report that her husband had received gun shot injury. We do not find statement of Paltu inspiring any confidence. ( 24 ) SMT. Kailashwati had narrated in the First Information Report that her husband had received gun shot injury. The doctor did not find any gun shot injury. When her attention was drawn to this fact, she stated that as shots were being fired from gun she thought that her husband might have received gun shot wound. ( 25 ) LIKE Paltu, Gaurishanker P. W. 3 had also not stated the specific role played by each of the accused in assaulting the injured and deceased. From his statement it also transpires that he has enmity with Gaurishanker accused. Thus, this witness is partisan in nature ( 26 ) THE learned Sessions Judge had given adequate reasons for acquitting the appellants. On a close scrutiny of evidence on record we find that evidence produced by the prosecution was not of such a character as to inspire confidence. It appears that from beginning some interested hand had intervened in the lodging of the report. The prosecution witnesses are not coming forward with a true version. The manner of occurrence as stated by them does not inspire confidence. Therefore, we find no error in the judgment and order of the lower court. The appeal is, therefore dismissed. Appeal dismissed. . .