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2014 DIGILAW 2091 (ALL)

JUGAL KISHORE TIWARI v. STATE OF U. P.

2014-07-16

RANJANA PANDYA

body2014
Mrs. Ranjana Pandya,J. 1. This revision has been preferred against the Judgment and order dated 17.3.1990 passed by the Judicial Magistrate, Jalaun at Orai in Criminal Case No. 867 of 1989, Jugal Kishore Vs. Bhajan Prakash and others, acquitting the accused persons under Section 382I.P.C. 2. Facts in brief are that the revisionist filed a complaint before the learned trial court alleging that the revisionist was residents of Mustgees Mohalla, Tulsi Nagar, Qasba Orai, District Jalaun and runs a shop of motor parts. 3. The opposite party no. 2 had instituted an execution application in which the revisionist had to pay Rs.31,00/-. After the orders of the court, the Advocate Commissioner Sri Abhilakh Singh Advocate accompanied by opposite party no. 2 and 15 to 20 unknown persons armed with arms, lathi, saria and ballam reached the spot and started shouting slogans that if anybody would interfere in the execution, they would kill him. Bhajan Lal opposite party was carrying his licensed revolver. On 12.2.1986 at about 9 p.m. when the shop was closed, the opposite parties 2 to 5 broke open the lock of the shop and took away Rs.3350/- cash and committed theft of articles worth Rs.54,300/- and set the doors of shops ablaze due to which they were partially burnt. This occurrence was witnessed by neighboring shop keepers, namely, Prem Prakash Maheshwari, Vrindawan, Jagdish Prasad, Mahesh Chandra and others. It is stated that the son of the revisionist Ashok Kumar also saw the occurrence and after reaching home, he narrated the occurrence to the revisionist who reached the spot and saw that all the articles of his shop were missing and half of the doors were burnt. The brother of the revisionist filed a written report at the police station but the report was not lodged, hence, he moved an application before the S.S.P. on 13.2.1986 but no action was taken thereupon by the S.S.P., therefore, a complaint was filed. 4. Before the trial court the statements of P.W.1 Jugal Kishore revisionist, P.W.2 Awadh Bihari P.W.3 Gangadhar, P.W. 4 Satish Prasad and P.W. 5 Sunil Kumar Das were recorded. The revisionist and the opposite parties nos. 2 to 5 filed certain documents in support of their versions. The learned lower court, after perusing the evidence adduced by both the parties, acquitted the accused persons, therefore, the revisionist has come up in the present revision. 5. The revisionist and the opposite parties nos. 2 to 5 filed certain documents in support of their versions. The learned lower court, after perusing the evidence adduced by both the parties, acquitted the accused persons, therefore, the revisionist has come up in the present revision. 5. Heard learned counsel for the revisionist and the learned A.G.A. 6. The F.I.R. is the backbone of a criminal case. Although it is well settled law that the F.I.R. is not an encyclopaedia of a case but inordinate delay in lodging the F.I.R. hampers the prosecution case and makes it doubtful. The Hon'ble Apex Court in Amar Singh Vs. Balwinder Singh and others, 2003 Cr.L.J. 1282, has held that there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful as it necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case. The learned lower court has very rightly held that there is inordinate delay in commencing the criminal proceeding and even if the version of the revisionist is believed that he sent an application to the S.S. P. but no action was taken even then there is no explanation coming from the side of the revisionist as to why the complaint was lodged about two years and eight months after the date of occurrence. This shows that the complaint was presented after due consultations. 7. According to the revisionist, the occurrence was witnessed by Prem Prakash Maheshwari, Vrindavan, Jagdish Prasad, Mahesh Chandra, Ashok Kumar son of the revisionist and other but neither of them were examined before the trial court. The hearsay evidence adduced by any witness is not at all admissible according to Section 60 of the Indian Evidence Act, 1872. Section 60 of the Indian Evidence Act reads as under:- "60. The hearsay evidence adduced by any witness is not at all admissible according to Section 60 of the Indian Evidence Act, 1872. Section 60 of the Indian Evidence Act reads as under:- "60. Oral evidence must be direct.- Oral evidence must, in all cases whatever, be direct; that is to say- If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without any amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection." 8. Thus, according to the above provision, hearsay evidence is not admissible specially when direct evidence was available and there is absolutely no ground as to why the eye witnesses specially Ashok Kumar, who was the son of the revisionist, was not produced. 9. As far as the motive is concerned, the Hon'ble Apex Court in State of Rajasthan Vs. Rajan Singh, 2011 SCC 1915. has held that generally it is difficult to prove the motive because motive for doing a criminal act is a difficult area for the prosecution since one cannot normally see into the mind of another. The motive is an emotion which impels a man to do a particular act. Rajan Singh, 2011 SCC 1915. has held that generally it is difficult to prove the motive because motive for doing a criminal act is a difficult area for the prosecution since one cannot normally see into the mind of another. The motive is an emotion which impels a man to do a particular act. It is known that motive behind an crime is a relevant fact and normally the prosecution is expected to adduce evidence in respect thereof. Experience shows that one or the other motive moves a culprit to certain acts of action. 10. In the present case, there is absolutely no motive for the opposite parties no. 2 to 5 to commit the offence because it is crystal clear from the material available on record that the opposite party had a decree in his favour, which was being executed through the court at the instance of the opposite party no. 2. Hence, he had no axe to grind. 11. The revisionist, who was complainant before the trial court was being dispossessed and had to pay Rs.31,00/- to the opposite party no. 2 decree holder, hence, he very well had a reason to oppose the execution and to falsely implicate the accused 2 to 5 which has been held by the trial court. There is ample material on the file of the lower court to show that the revisionist was frustrated due to the execution and, thus, he falsely implicated the opposite parties no. 2 to 5. 12. In view of the above, the order under revision does not suffer from any irregularity, impropriety and illegality, therefore, the revision deserves to be dismissed. 13. The revision is dismissed.