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2018 DIGILAW 2292 (ALL)

Krishna v. State of U. P.

2018-11-02

ARVIND KUMAR MISHRA I

body2018
ORDER : Arvind Kumar Mishra-I, J. 1. By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 01.11.2003 passed by the Additional Sessions Judge, Fast Track Court, Sonbhadra, in Session Trial No. 37 of 2003 State Vs. Krishna and others, arising out of Case Crime No. 106 of 2003 under Sections 436, 147, 427 I.P.C., Police Station- Chopan, District- Sonbhadra, whereby the accused-appellants have been sentenced to undergo ten years rigorous imprisonment coupled with fine Rs. 2000/- under Section 436 I.P.C., one year rigorous imprisonment under Section 147 I.P.C. and one year rigorous imprisonment under Section 427 I.P.C., in default of payment of fine, they will have to undergo additional one year imprisonment. 2. Relevant to mention that appellant no. 3 Ram Sunder has died during pendency of this appeal, therefore, the appeal qua appellant no. 3 Ram Sunder stood abated on 29.10.2018. 3. Heard Sri Ashok Kumar Srivastava, learned counsel for appellant nos. 1 and 2, Sri Mukesh Kumar Pandey, learned counsel for the informant, Sri Om Narain Tripathi, learned A.G.A. assisted by Sri Ajay Kumar Singh, learned brief holder for the State and perused the record. 4. In the background of this case, there appears lodging of the report at Police Station Chopan District Sonbhadra on 22.02.2003 at 7:10 p.m. by the informant Raj Narain Giri son of Basantu Giri, resident of village Pakari, Police Station Chopan, District Sonbadhra regarding some incident of arson committed by the accused-appellants around 8:30 a.m. the very same day with description that the information of arson was given to the informant by his nephew Kripa Shanker Giri son of Deo Narain Giri on 22.02.2003 at Chopan that the accused-appellants in company with ten unknown persons, who are not known to the informant's nephew, suddenly appeared at the house of the informant and his brother Deo Narain Giri, while his nephews were working in the field, caused arson around 8:30 a.m. (on 22.02.2003) due to which the houses were badly burnt. While fleeing away from the scene, the miscreants threatened the entire 'Giri' family that they will not be spared if they tried to reside in the village, and with a view to expel them out of the village, they (miscreants) have committed the crime. 5. While fleeing away from the scene, the miscreants threatened the entire 'Giri' family that they will not be spared if they tried to reside in the village, and with a view to expel them out of the village, they (miscreants) have committed the crime. 5. It was also described in the very beginning of the first information report that last year on 05.07.2002, naxalites in collusion with certain villagers of his village had blown house of the informant by dynamite due to which tractor, motorcycle and house hold goods were burnt. The informant and his brother carry on agricultural work at the protection of the police. 6. The report was lodged at Police Station Chopan around 7:10 p.m. on 22.02.2003 and relevant entries regarding the same were made in the general diary concerned of the aforesaid date and time at the aforesaid police station. 7. The investigation ensued and the same was taken over by Shashindra Prasad Shukla PW-5 who after the case was lodged took note of the contents of the first information report and the relevant entries and recorded statement of the informant and the prosecution witnesses and prepared site plan Ext. Ka-4 and after completing the investigation filed charge sheet Ext. Ka-5. 8. Consequent thereupon, the case was committed to the court of Sessions where the accused were heard on the point of charge. Charges under Sections 147, 427, 436 I.P.C. were framed and explained to the accused who abjured charges and claimed to be tried, whereupon, in order to prove guilt of the accused, the prosecution examined as many as five witnesses namely Raj Narain Giri PW-1 who is the informant, however, he has not seen the incident. Uma Shanker Giri and Kripa Shanker PW-2 and PW-3 are witnesses of fact, they have described about the incident. Sunil Kumar Ojha PW-4 is the Constable who noted contents of the written report and lodged the case. Shashindra Prasad Shukla PW-5 is the Investigating Officer. Except as above, no other testimony was adduced by the prosecution. 9. Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, they claimed to have been falsely implicated by the informant in collusion with the police in this case. No evidence, whatsoever, was led by the defence. 10. Except as above, no other testimony was adduced by the prosecution. 9. Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, they claimed to have been falsely implicated by the informant in collusion with the police in this case. No evidence, whatsoever, was led by the defence. 10. The learned Additional Sessions Judge, Fast Track Court, Sonbhadra, after appraisal of facts and vetting merit of the case and evaluation of the evidence on record, returned aforesaid finding of conviction and sentenced the appellants to undergo ten years rigorous imprisonment coupled with fine Rs. 2000/- under Section 436 I.P.C., one year rigorous imprisonment under Section 147 I.P.C. and one year rigorous imprisonment under Section 427 I.P.C., in default of payment of fine, they will have to undergo additional one year imprisonment. 11. Feeling aggrieved, the accused-appellants have come up before this Court. 12. It has been contended on behalf of the accused-appellants that the entire facts and circumstances evinces that the informant was inimical towards the accused-appellants and he is himself a notorious person and he exploits the poor and helpless persons of the village and tries to establish his supremacy over the people residing in the village. There is no list of burnt items, whereas, the first information report mentions that list of the burnt items shall be supplied later on. No memo, whatsoever, of any burnt item was prepared. The first information report is ante timed. 13. There is no list of burnt items, whereas, the first information report mentions that list of the burnt items shall be supplied later on. No memo, whatsoever, of any burnt item was prepared. The first information report is ante timed. 13. It has been added that as per testimony of the prosecution witnesses of fact, the Station House Officer, Police Station Chopan was present after the occurrence in the afternoon of 22.02.2003 and was also present at the time of lodging of the first information report and Daroga Ji noted down the contents and then the first information report was lodged, that too after almost two hours of the actual time shown when the first information report was lodged at 7:10 p.m. The testimony is replete with the description that Uma Shanker Giri PW-2 arrived at the police station around 7:30 p.m. on 22.02.2003 thereafter the report was written in his presence at the police station and Daroga Ji was writing the report and Raj Narain Giri PW-1 appended his signature on it and all these took place after one and half hour after 7:30 p.m. Then under circumstances, lodging of the first information report at 7:10 p.m. on 22.02.2003 becomes self-contradictory and ante timed. 14. It has been further added that theory of arson has been developed by the informant, whereas, no such incident took place. Further, theory of gun was introduced and causing of fire by use of pipeline rod is an improvement and is in contrast to the statement recorded by the Investigating Officer. 15. Apart from above, testimony of both the witnesses of fact PW-2 and PW-3 is full of improvement and embellishments besides being contradictory on material particulars. No arson at the house of the informant ever took place on 22.02.2003 as described in the first information report and this fact has been verified by Bandhu, Pradhan of the village and he has given in writing that no such incident as the present one regarding arson being caused at the house of the informant and his brother ever took place and the informant himself is a notorious person and tries to exploit the poor men of the village. Evidence of the eye-witnesses does not inspire confidence and it is full of inherent contradictions. 16. Evidence of the eye-witnesses does not inspire confidence and it is full of inherent contradictions. 16. While retorting to aforesaid contention, learned AGA has submitted that in this case, prosecution witnesses of fact namely PW-2 and PW-3 have categorically stated about the incident and have described the details of the incident which leaves no room for any doubt. The contradictions, whatever, occurring in the testimony of the prosecution witnesses are natural and there is no material contradiction. Charges have been proved satisfactorily beyond reasonable doubt. The learned trial court while appreciating merit of the case was impressed by consistency of the aforesaid facts and proof of the same, therefore, rightly recorded conviction and awarded just sentence against the appellants. 17. Also considered the rival submissions. 18. In this case, bare perusal of the report Ext. Ka-1, it makes explicit that the informant Raj Narain Giri PW-1 lodged the first information report with the description that in the year 2002 on 5th July, some naxalites caused arson with the conspiracy of co-villagers of the informant and the house of the informant was blown through dynamite due to which all the house hold goods along with tractor and motorcycle of the informant was reduced to ashes. Thereafter, with the help of the local police, the informant and his brother could engage themselves in agricultural work. Today, on 22.02.2003 the informant's nephew Kripa Shanker Giri son of Deo Narain Giri informed him at Chopan that at 8:30 a.m. when his nephew was working in the field, he saw the present accused-appellants in company with a number of others including ten unknown persons, who suddenly appeared and caused arson in his house as well as house of his brother Deo Narain due to which much destruction was caused to the houses. While leaving the place of occurrence, the miscreants extended threat to the entire 'GIRI' family with dire consequences and said that they would not allow the informant and his family to live in the village. 19. It has also been described in the ending part of the report that with a view to expel the informant and his family from the village, the incident was caused. List of burnt items/goods shall be furnished later on. After getting the information, the informant had visited his home, thereafter he has come to report about the incident. 20. 19. It has also been described in the ending part of the report that with a view to expel the informant and his family from the village, the incident was caused. List of burnt items/goods shall be furnished later on. After getting the information, the informant had visited his home, thereafter he has come to report about the incident. 20. If this description is assumed to be absolutely correct then obviously in the entire testimony of three witnesses of fact PW-1, PW-2 and PW-3 namely Raj Narain Giri, Uma Shanker Giri and Kripa Shanker Giri, there is no description of any list of the burnt items/goods. Only sketchy reference of burnt cycle in the shape of skeleton has been made by the witnesses. Surprisingly, no memo of any burnt article was ever prepared by the Investigating Officer. The first information report has been supported by PW-1, informant Raj Narain Giri that at the time of the incident, his nephews were working in the field, whereas, testimony of their nephews PW-2 and PW-3 is indicative of fact that at that point of time, they were not working in the field but were inside their house when the miscreants arrived on the spot, therefore, on this aspect of whereabouts of nephews of the informant at the actual time when the miscreants arrived on the scene of occurrence is contradictory. There appears material contradiction on other points as well which are noticed on appreciation of testimony vis-a-vis facts and circumstances of this case. 21. The very manner of causing arson has not been described in the first information report nor any such manner has been stated in the statement of the prosecution witnesses recorded under Section 161 Cr.P.C. but a theory has been developed at the time of recording of the testimony of the prosecution witnesses of fact that arson was caused by holding pipeline rods with cloth tied to its top and after sprinkling kerosene oil, lit fire to it. 22. The informant Raj Narain Giri PW-1 says that pipeline rod was about 20 feet in length, whereas, Uma Shanker Giri PW-3 says that there were as many as 12 pipes whereby all the miscreants were causing arson. 22. The informant Raj Narain Giri PW-1 says that pipeline rod was about 20 feet in length, whereas, Uma Shanker Giri PW-3 says that there were as many as 12 pipes whereby all the miscreants were causing arson. Not only this, PW-2 and PW-3 have also developed theory that certain miscreants were possessing guns and rifles in their hands at the time of the incident, whereas, no such statement was ever given by them to the Investigating Officer. The report does not contain any such description regarding guns. 23. However, the entirety of the case becomes highly doubtful in view of the fact that testimony of Kripa Shanker Giri PW-3 is indicative of fact that after the incident, Station House Officer of Police Station Chopan had visited the spot around 1:00 p.m. to 1:30 p.m. in the afternoon (of 22.02.2003) and the police force went back to the police station around 6:30 p.m. to 7:00 p.m. and it is noticeable that the first information report was lodged after 10 minutes of conversation with Daroga Ji and at that point of time, it was about 7:00 p.m., thus deliberation with the police prior to the lodging of the first information report is a proved fact. 24. Kripa Shanker Giri PW-3 has testified to fact that the report was lodged at 7:10 p.m. on the day of the occurrence and this fact stands corroborated by testimony of Constable Sunil Kumar Ojha PW-4 who noted contents of the written report in the Check F.I.R. and made relevant entry in the concerned general diary on 22.02.2003 at Police Station Chopan. 25. Now the point is that prior to the lodging of the first information report, presence of the police on the spot is no denying fact. It has emerged in the cross examination of Uma Shanker Giri PW-2 that the report was lodged in his presence at the police station and he arrived at the police station around 7:30 p.m. on the day of the occurrence and the report was lodged thereafter at a gap of one and half hour. In the meanwhile, conversation with Daroga Ji continued. He was narrating to Daroga Ji and he was writing the report and signature of the informant (PW-1) was obtained after the same was written. In the meanwhile, conversation with Daroga Ji continued. He was narrating to Daroga Ji and he was writing the report and signature of the informant (PW-1) was obtained after the same was written. This is further indicative of fact that the written report stated to have been lodged at Police Station Chopan at 7:10 p.m. on 22.02.2003 is ante timed and was in fact not lodged at 7:10 p.m. but the report is outcome of consultation and deliberation with the police. 26. In such fact situation, the suggestion given by the defence that the informant was very much offended with the poor men and labourers of 'Kanhaura' and had earlier lodged report against these persons for causing arson at his house on 05.07.2002 and his house was blown by dynamite and in that regard, the names of the present accused were also dragged but they were not made accused. The motivating force for lodging the first information report appear to be jealously and grudge against the present accused on account of enmity. 27. It has emerged in the testimony of the information PW-1 that some case was lodged against the informant whereby allegations of forced and bonded labourers were made against him (informant). PW-1 has testified that at the time of the incident, Bandhu was Pradhan of his village and he (informant) had no enmity with Bandhu. Bandhu had given in writing that no such incident of arson ever took place. He has also informed in writing that Raj Narain Giri is sturdy person, he spreads terror and causes embarrassment to the poor men of the village by holding that they should act according to the wishes of Raj Narain Giri. 28. One surprising aspect of testimony of the prosecution witnesses is noticeable on perusal that the informant Raj Narain Giri PW-1 has admitted fact in his cross examination that names of the accused Jagarnath and Rambali were wrongly written in the report and their names were spelt at the instance of the nephew of the informant. 29. Further on the factual aspect about participation of Jagarnath and Rambali in the alleged incident, PW-2 and PW-3 are not testifying on correct lines. Uma Shanker Giri PW-2 says that he saw Rambali and Jagarnath causing fire by lightening pipes. Similarly, Kripa Shanker Giri PW-3 also says that among accused Rambali and Jagarnath were also present. 29. Further on the factual aspect about participation of Jagarnath and Rambali in the alleged incident, PW-2 and PW-3 are not testifying on correct lines. Uma Shanker Giri PW-2 says that he saw Rambali and Jagarnath causing fire by lightening pipes. Similarly, Kripa Shanker Giri PW-3 also says that among accused Rambali and Jagarnath were also present. This specific piece of testimony by PW-2 and PW-3 is an apparent improvement on material point and this appear to be outcome of serious deliberation in collusion with the police. This outcome is very much supported by fact emerging in the cross examination of Kripa Shanker Giri PW-3 when he testified in obvious terms that he does not know parentage of the accused and he did not spell the parentage of the accused to Daroga Ji. How Daroga Ji wrote parentage in his statement is beyond his comprehension and he cannot assign any reason for the same. This shows activeness of the Investigating Officer in writing statement of witnesses at whim. 30. Apart from above, there are lot of contradictions not only in the testimony of PW-2 and PW-3 but also in the testimony of the informant Raj Narain Giri PW-1, Uma Shanker Giri PW-2 and Kripa Shanker Giri PW-3. It has already been observed that no list of burnt items was ever prepared, whereas, the first information report contained description that list of burnt articles will be supplied later on. All these facts when taken together, create lot of doubt and serious dent in the prosecution story. It can be affirmed with ample certainty that in this case, lodging of the first information report is ante timed which fact alone is sufficient to throw away the case of the prosecution. 31. The trial Judge while considering these aspects could not record appropriate finding in regard to these particular facts and erroneously recorded conviction which conviction is not sustainable in its present form and sentence awarded is liable to be set aside. 32. Consequently, the judgment and order of conviction dated 01.11.2003 passed by the Additional Sessions Judge, Fast Track Court, Sonbhadra, in Session Trial No. 37 of 2003 State Vs. Krishna and others, arising out of Case Crime No. 106 of 2003 under Sections 436, 147, 427 I.P.C., Police Station- Chopan, District-Sonbhadra, is hereby set aside. 33. Accused-appellants are acquitted of the charges as above. 34. Krishna and others, arising out of Case Crime No. 106 of 2003 under Sections 436, 147, 427 I.P.C., Police Station- Chopan, District-Sonbhadra, is hereby set aside. 33. Accused-appellants are acquitted of the charges as above. 34. Accordingly, the instant appeal succeeds and the same is allowed. 35. In this case, the appellants are in jail. They shall be released forthwith unless and until they are wanted in connection with any other case. The appellants shall ensure compliance of Section 437A Cr.P.C. 36. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.