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2014 DIGILAW 3766 (ALL)

Ratan Singh v. State of U. P.

2014-12-17

ANANT KUMAR, DEVENDRA PRATAP SINGH

body2014
JUDGMENT Anant Kumar, J. 1. This criminal appeal under section 374 Cr.P.C. has been filed by accused Ratan Singh son of Khargi Ram against the judgment and order dated 11.3.1983 passed by VI Additional Sessions Judge, Etah in S.T. No. 156 of 1982 convicting the appellant under section 302 I.P.C. and sentencing him for life. 2. The brief facts as unfolded by the prosecution is that the complainant Ghanshyam son of Khargi Ram resident of village Tikampura, P.S. Marhera, District Etah lodged an FIR in the concerned police station being crime No. 202 of 1980 on 23.6.1980 at 5.45 p.m. regarding the occurrence of the same day at 4.00 p.m. it is stated in the FIR that at about 8.00 a.m., there was a quarrel between the wife of complainant Premwati and Tarawati, wife of Ratan Singh, who is the real younger brother of the complainant on the point of tying cattle. Due to this, at about 4.00 p.m. when the kids of the complainant namely Narendra, Rajendra and Satendra were playing by the road side, Ratan Singh son of Khargi Ram and Daulat Ram son of Girwar came there and inflicted brick blows on the head and abdomen of Satendra and had dumped him on the ground, whereupon other two kids started crying and responding to the commotion, co-villagers Jai Ram son of Damru and Smt. Jaldhara reached the spot and seeing them, accused persons ran away. It is further stated that the injured kid is unconscious and has been admitted to Government Hospital Merhera. On the basis of this written complaint, FIR was lodged and entry to this effect was made in GD Rapat No. 24 at 17.45 initially under section 308 I.P.C. and later on, a memo was received at police station from the Government Hospital, Merhera about the death of Satendra. So on the basis of that memo, the case was converted under section 304I.P.C. and investigation was commenced. The Investigating Officer prepared inquest memo, site plan and the dead body was sent for postmortem examination. The postmortem of the deceased was done on 24.6.1980 and following ante mortem injuries were found on the body of the deceased; "1. Lacerated wound 1cm x 1cm x bone deep on the right side back of head 11cm behind right ear. The Investigating Officer prepared inquest memo, site plan and the dead body was sent for postmortem examination. The postmortem of the deceased was done on 24.6.1980 and following ante mortem injuries were found on the body of the deceased; "1. Lacerated wound 1cm x 1cm x bone deep on the right side back of head 11cm behind right ear. On his internal examination, haematoma was found in the layers below the said injury and there was commuted fracture of occipital and right parietal bones. Haematoma was found below and above the membranes and below the injury." 3. After investigation, charge sheet was submitted against the accused Ratan Singh and during trial, charges were framed against him under section 302 I.P.C. On behalf of the prosecution, witnesses complainant as Ghanshyam P.W. 1, while sons Narendra P.W. 2 and Rajendra P.W. 3 were produced as witnesses of fact and Dr. P.K. Jain P.W. 4, who had conducted the postmortem was also produced. After hearing the prosecution and defence, the learned trial court came to the conclusion that the prosecution has succeeded to prove the guilt of the accused Ratan Singh beyond all reasonable doubt. Accordingly, Ratan Singh was convicted under section 302 I.P.C. Hence this appeal. 4. We have heard Sri Viresh Mishra, learned senior counsel assisted by Sri Sheo Ram Singh, learned counsel on behalf of the accused and Sri Rajiv Gupta learned AGA on behalf of the State and have perused the material on record. 5. It is mainly argued on behalf of the defence that in the FIR, two eye witnesses Jai Ram and Smt. Jaldhara have been showed but both these witnesses have been withheld by the prosecution without any reasonable cause and the learned trial court has convicted the accused only on the basis of testimony of two child witnesses Narendra and Rajendra, who are the real brothers of the deceased and sons of complainant Ghanshyam. It is further stated that the complainant Ghanshyam is not an eye witness, so the learned trial court has erred in totally relying on the uncorroborated testimony of child witnesses. It is further stated that the complainant Ghanshyam is not an eye witness, so the learned trial court has erred in totally relying on the uncorroborated testimony of child witnesses. It is further stated that as per the FIR, the accused had inflicted blows with a brick on the head and the abdomen and had thrown the deceased on the ground but as per the postmortem report, there is no injury in the abdomen or any other part of the body and even the dimension of the injury shown in the postmortem report does not tally with the occular evidence, so there is a contradiction between the medical and occular evidence. It is further argued that it has come in the evidence that all the three kids of the complainant were playing by the road side and were breaking mangoes by throwing stones and there is every possibility that any of such stone may have rebounded from the tree, which would have hit the head of the deceased and since the deceased was a child of 5 years of tender age, he died due to the said injury because the dimension and the seat of the injury shows that it was on the right side of back of the head, which could not be caused, if somebody hits a brick on the head. 6. Whereas on behalf of the prosecution, it is argued by the learned AGA that the witnesses Narendra and Rajendra though both are child witnesses but they were playing by the side of the road at the time of the occurrence, so they are the eye witnesses and their statements are consistent. It is next submitted that though the witnesses Jai Ram and Smt. Jaldhara have not been produced yet it will not affect the prosecution case and the learned trial court has rightly placed reliance on the statement of the witnesses Narendra and Rajendra produced by the prosecution. It is further stated that though as per the postmortem report, the injury of the deceased is shown as 1cm x 1cm x bone deep on the right side back of the head but on internal examination, haematoma was found in the layers below and there was commuted fracture of occipital and right parietal bone, haematoma was also found below and above the membranes and below the injury. So, it is argued, that the internal examination of the deceased shows that the said injury could be caused to the deceased by striking with a brick. It is further stated that in the inquest of the deceased, the police officer, who had conducted the inquest has noted that there was swelling in the abdomen and there was contusion and since this document has been admitted on behalf of the defence under section 294 Cr.P.C., so this document can well be read in evidence. So as per the inquest report, there were two injuries found on the body of the deceased, one was on the head and the other was in the abdomen, which very well suggests that the said injuries were inflicted by the accused and could not be caused by throwing stones. He has relied upon a decision in Saddiq and others v. State 1981 (18) ACC (Full Bench) page 58wherein a Full Bench of this Court has held that "an injury report filed by the prosecution under sub-section (1) of Section 294 Cr.P.C. whose genuineness is not disputed by the accused may be read as substantive evidence under sub-section (3) of Section 294 Cr.P.C." A similar view has been taken by the Hon'ble Supreme Court in the case of Akhtar and others v. State of Uttranchal (2009) 13 SCC page 722, wherein the Hon'ble Supreme Court has held that " It has been argued that non-examination of the medical officers concerned is fatal for the prosecution. However, there is no denial of the fact that the defence admitted the genuineness of the injury reports and the post-mortem examination reports before the trial court. So the genuineness and authenticity of the documents stands proved and shall be treated as valid evidence under section 294 Cr.P.C. it is settled position of law that if the genuineness of any document filed by a party is not disputed by the opposite party it can be read as substantive evidence under Sub-section (3) of Section 294 Cr.P.C. Accordingly, the post-mortem report, if its genuineness is not disputed by the opposite party, the said post-mortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined." 7. It is further stated by learned AGA that from the material on record, the guilt of the accused is proved and the learned trial court has correctly held that the prosecution has succeeded to prove the guilt of the accused beyond all reasonable doubts. 8. After hearing the rival submissions advanced by the learned counsel for the appellant and the learned AGA, we are of the view that the following points emerge for determination; "(1) Whether the learned trial court has correctly placed reliance on the child witnesses Narendra and Rajendra? (2) Whether the theory as put up by the prosecution is fully probable and the prosecution has succeeded to prove the guilt of the accused beyond all reasonable doubts?" Point No. 1 9. It is evident from the version of the FIR that the complainant Ghanshyam is not an eye witness of the incident. He has stated that on the date of the occurrence, his sons Narendra, Rajendra and Satendra were playing under the mango trees by the side of the road at about 4 p.m., he had seen that some crowd was gathered there then the complainant along with his wife reached there and at that time, his son Satendra was lying unconscious, other sons Narendra and Rajendra revealed that uncle Ratan Singh had came from the house having a piece of brick in his hand. He had dumped the boy on the ground and had inflicted injuries from the brick in the head and abdomen. They further revealed that along with Ratan Singh, Daulat Ram was also there but he has not done anything and after the incident, Ratan Singh had ran away, so it is very much evident that at the time of the occurrence, complainant Ghanshyam was not on the spot. No other witness except child witness has been produced on behalf of the prosecution. P.W. 2 Narendra aged about 10 years has stated that on the date of the occurrence, they were playing by the side of the road under the mango trees. He has further stated that the place where they were playing is far from his house and could not be seen from the place of the occurrence, it takes about 10-15 minutes to reach the said place. He has further stated that the place where they were playing is far from his house and could not be seen from the place of the occurrence, it takes about 10-15 minutes to reach the said place. At first, he has stated that they were not plucking raw mangos by throwing pebbles and has stated that they were collecting the mangos, which had fallen on the ground but later on in the cross examination, he has admitted that they were plucking the raw mangos by throwing pebbles and the deceased Satendra was sitting by the side of the tree and was collecting the mangos, which were falling from the tree. Other witness P.W. 3 Rajendra aged about 12 years has stated that on the date of the incident, all the three i.e. Rajendra, Narendra and Satendra were playing under the mango tree and in the meantime, accused Ratan Singh came there having a brick in his hand. He had thrown his brother Satendra on the ground and had inflicted injuries from the brick in his head and abdomen thereafter the accused ran away from the spot. During cross examination, he has stated that he and Narendra were plucking the raw mangos by throwing pebbles whereas Satendra (deceased) was collecting the mangos and at one time, he had warned that he should be careful otherwise pebbles may hit him. The Dr. P.K. Jain, P.W. 4 has categorically stated that there was only one injury on the body of the deceased and has stated that if there would have been other injury on the body of the deceased, he could have certainly noticed the same at the time of the postmortem. He has further admitted that if the children are plucking mango by throwing pebbles on the tree and if any such pebbles rebounds, the said injury could be caused. Regarding the child witnesses, it is settled proposition of law that when the Court has to believe the statement of child witness, the Court should be very careful and cautious and should normally seek for the corroboration, if it is so available. In this regard on behalf of the defence, reliance has been placed in the case of Arbind Singh v. State of Bihar [ AIR 1994 SC 1068 ]. In this regard on behalf of the defence, reliance has been placed in the case of Arbind Singh v. State of Bihar [ AIR 1994 SC 1068 ]. In the said case as per the facts, the entire case hinges on the evidence of the child witness P.W. 2 Roopam Kumar and after carefully scrutinizing the statement, the Hon'ble Supreme Court was of the view that it appears from the statements that she has not been consistent in her version. That apart, it was found that the evidence of the witness traces of tutoring on certain aspect of the case were present. Reliance has also been placed in another case Caetano Piedade Fernandes and another v. Union Territory of Goa [ AIR 1977 SC 135 ], wherein, the Hon'ble Supreme Court has held that the evidence of a child witness is to be approached with great caution. So to our view, the learned trial court has erred in totally relying on the statement of these child witnesses, who are the sons of the complainant and brothers of the deceased and are prone to tutoring, which is very much evident from the careful scrutiny of the evidence. At one place, P.W. 2 has stated that they were not plucking the raw mangos by throwing pebbles on the tree rather they were only collecting the mangos, which had fallen down but in the later statement, he has admitted that they were plucking the mangos by throwing pebbles on the tree and the youngest brother (deceased) was collecting the same. P.W. 3 has also admitted that they were plucking the raw mangos by throwing pebbles on the tree. So, if this version of the child witness is scrutinized and is compared with the injury caused to the deceased, it is evident that a lacerated wound 1cm x 1cm x bone deep was found on the right side back of the head of the deceased, 11cm behind right ear. So, if anybody will hit the head of the deceased with the brick, it will certainly become on the top of the head and not in the back of the head, as is shown in the postmortem report. Except one injury, no other injury has been found by the doctor on any part of the body of the deceased. So, if anybody will hit the head of the deceased with the brick, it will certainly become on the top of the head and not in the back of the head, as is shown in the postmortem report. Except one injury, no other injury has been found by the doctor on any part of the body of the deceased. Though in the inquest report, the police officer has found that there was contusion and swelling on the abdomen of the deceased but since there is a contradiction in both the injuries. In our view, the statement of the doctor, who is an expert on his field is to be given primacy. So, if the entire prosecution story is glanced, there is every possibility that the said small injury of 1cm x 1cm would have caused to the deceased by any pebble rebounded from the tree, which was thrown by P.W. 2 and P.W. 3, therefore, in our view, there was no occasion for the accused to cause the said incident because no specific case has been put forth by the prosecution that the relations of complainant and his brother accused Ratan Singh were so strained that he could kill his son. In his statement also P.W. 1 has not stated anything that there was any previous enmity between the complainant and the accused so to our view, the learned trial court has erred in fully believing the child witnesses particularly when there are material contradictions in their statements. The trial court has not tried to seek any corroboration in this regard. Point No. 2 10. So to our view, the entire prosecution story put up by the prosecution does not appear to be probable and the story put forth by the defence appears to be more probable and looking to the entire facts and circumstances, it is evident that the occurrence had taken place because all the brothers P.W. 2, P.W. 3 and the deceased Satendra were playing under the mango tree. P.W. 2 and P.W. 3 were plucking the raw mangoes by throwing pebbles on the tree and one of such pebbles had rebounded and had hit the deceased, which caused the fatal injury and the deceased had died in the hospital. P.W. 2 and P.W. 3 were plucking the raw mangoes by throwing pebbles on the tree and one of such pebbles had rebounded and had hit the deceased, which caused the fatal injury and the deceased had died in the hospital. So to our view, the story as put up by the prosecution does not appear to probable and the involvement of the accused in the present case appears to be doubtful and in our view, the appeal is liable to be allowed and accused appellant is liable to be acquitted getting the benefit of doubt. 11. Accordingly, the appeal succeeds and is allowed. The conviction and sentence passed by the trial court is set aside and accused is acquitted from all the charges getting the benefit of doubt. He is on bail, he need not surrender. His bail bonds are cancelled and sureties are discharged.