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2022 DIGILAW 1436 (ALL)

Mohan Lal v. State

2022-09-09

KRISHAN PAHAL

body2022
JUDGMENT : 1. Heard Mr. Dharam Pal Singh, learned Senior Counsel assisted by Sri Siddharth Niranjan, learned counsel for the appellants and Sri Vinod Kumar Singh Parmar, learned AGA for the State. 2. Present Criminal Appeal under Section 374(2) of the Cr.P.C. has been preferred by accused-appellants Mohan Lal and Sanjay Kumar against the judgment and order dated 5.3.1991 passed by Special Judge, D.A.A. Kanpur Dehat in Special Sessions Trial No.33 of 1990 (State Vs. Mohan Lal and Another), whereby accused-appellants were convicted u/s 394 IPC and sentenced to three years rigorous imprisonment. PROSECUTION STORY: 3. On the basis of written report dated 29.9.1989 (Ex.Ka-1), an FIR was lodged by informant Pratap Singh s/o Raghuveer Singh with the allegation that in the night of 28/29.9.1989 at about 11:45 PM, when the informant was sleeping along with his family members in his house, four miscreants are stated to have climbed up to the roof of his house and started stealing the articles. Two of the miscreants are stated to have taken the boxes of his daughter-in-law with them to the roof of the house and the other two miscreants were in the courtyard of the house. The informant and the inmates woke up on hearing the noise and one of the miscreants at the roof is stated to have thrown bricks upon the informant injuring him on his head. Two miscreants i.e. the appellants herein were apprehended in the courtyard itself by the informant with the help of his sons and people of locality, namely, Dharam Pal, Madan Singh, Chatrapal Singh etc. A list of the looted articles was also given by the informant. The FIR of the said incident was lodged by the informant at the Police Station Gajner, Kanpur Dehat on the very next date i.e. 08:30 AM and had taken the two apprehended accused persons to the police station along with him. 4. The arrested accused persons were kept in the hawalat in the police station and a quilt was provided to them. Investigation was taken up by S.I. Jagroop Singh who after recording the statement of the witnesses, preparing the site plan etc., filed a charge-sheet against the appellants u/s 394 IPC. TRIAL 5. During trial, the prosecution chose to examine the two witnesses of fact i.e. PW-1 Pratap Singh and PW-2 Dhirendra. The Investigating Officer S.I. Jagroop Singh was examined as PW-3. 6. TRIAL 5. During trial, the prosecution chose to examine the two witnesses of fact i.e. PW-1 Pratap Singh and PW-2 Dhirendra. The Investigating Officer S.I. Jagroop Singh was examined as PW-3. 6. PW-1 Pratap Singh has corroborated the prosecution story as per the FIR and has stated that the appellants were caught by him and other inmates of the family with the help of other members of the locality. He has also stated that there was an enmity between the appellants and the informant as the appellants belong to the group of the present Gram Pradhan and the informant belong to the other party opposed to the Gram Pradhan. He has proved the written report as Ex.Ka-1. 7. PW-2 Dhirendra is the son of the informant. He has corroborated the prosecution story but has also admitted the fact that there was an enmity between the informant and appellants. 8. PW-3 S.I. Jagroop Singh has proved other documents although Constable Amar Singh is their scribe i.e. FIR and G.D. of institution of FIR i.e. G.D. No.15/8:30 AM dated 29.9.1989. The formal proof of the injury report was dispensed with by the defense counsel so it also stood proved. The charge-sheet was exhibited as Ex.Ka-4 and the injury report dated 30.9.1989 at 11:30 AM was exhibited as Ex.Ka-5. 9. The statement of the accused-appellants was recorded u/s 313 Cr.P.C. in which both the accused persons have stated that they have been falsely implicated due to previous enmity between the parties as the appellants were ardent supporters of the present Gram Pradhan. RIVAL CONTENTIONS 10. At the outset, Sri Dharam Pal Singh, learned Senior Counsel has stated that the FIR is delayed by about 9 hours and there is no explanation of said delay. It is an admitted fact as it transpires from the statement of PW-1 that the police station is 8 kilometers away from the place of occurrence and the inordinate delay of 9 hours itself falsifies the prosecution story. He has also stated that it has come up in the statement of the PW-1 that there is a police chowki at a distance of 3 kilometers away from the village and during the said intervening 9 hours, the informant or any other members of the family or of the vicinity did not care to inform the police personnel posted at the police station or the said chowki. A false explanation to the said delay has been given by the informant that out of fear, he did not go to lodge the FIR while he has stated in his statement itself that a lot of people of the locality have gathered and even two of his sons were also in the house at the time of the said offence. There is nothing on record to suggest that how the said fear factor was overcome by the informant. 11. Learned Senior Counsel has also stated that no weapon of crime or incriminating material has been recovered from the possession of the appellants. No stolen/robbed property has been recovered from their possession. Even no attempt has been made by the Investigating Officer to ascertain the identity of the other accused persons who had run away and are stated to have assaulted the informant by brick and taken away the booty. 12. Learned Senior Counsel has further stated that PWs-1 and 2 are the interested witnesses as indicated in their statements as there was a political rivalry between the informant and the appellants. The enmity is a double-edged sword as it may be the cause of offence but may also be cause of false implication. There is no possibility of a person to rob a person in the same village and that too, without muffled faces. The witnesses are interested witnesses, their sole interest was to get the appellants convicted to settle political scores. 13. Learned Senior Counsel has further stated that no independent witness has been produced by the informant as prosecution witness. The three eye witnesses named in the FIR i.e. Dharam Pal Singh, Madan Singh and Chatrapal Singh have not been examined. 14. Learned Senior Counsel has further stated that a perusal of G.D. of institution of crime i.e. G.D. No.15/8:30 AM dated 29.9.1989, which is exhibited as Ex.Ka-3, categorically indicates that the informant along with the appellants had gone to the police station with four more persons who are Sudhir Singh, Munna Singh, Ashok and Upendra but none of these witnesses have been examined as prosecution witnesses which clearly indicates that the prosecution story is false and lacks any credence. Learned Senior Counsel has further stated that in the aforesaid G.D. Ex.Ka-3, nothing has been recovered from the possession of the appellants except their clothes. 15. Learned Senior Counsel has further stated that in the aforesaid G.D. Ex.Ka-3, nothing has been recovered from the possession of the appellants except their clothes. 15. Learned Senior Counsel has also pointed out that as per the statement of the witnesses, the appellant no.1 Mohan Lal was wearing a vest, although in the villages, in the fag end of month of September, it is quite cold in the night and even Ex.Ka-3 itself indicates that a quilt was provided to them at the police station. It further falsifies the prosecution story. 16. Learned Senior Counsel has also stated that the informant has been medically examined after inordinate delay of one and a half day i.e. on 30.9.1989 at about 11:20 AM. The said injury report Ex.Ka-5 categorically indicates that injury no.1 is lacerated wound 1cm x 1cm on the left parietal bone 7cm above left ear. As per opinion of doctor, the said injury is simple in nature and caused by hard and blunt object. 17. Learned Senior Counsel has also stated that in the column of B/B i.e. the person who had taken the injured person to the hospital for examination, there is overwriting of the word “Self” and later on, the name of Homeguard Shyam Lal has been added. It also indicates that the said injury report has been prepared after much delay in connivance with local doctor as such he has not been examined by the prosecution, although said fact finds mentioned in Ex.Ka-3 itself. 18. Learned Senior Counsel has indicated several other contradictions in the statements of PWs-1 and 2. He has further stated that there are various inconsistencies in their statements. The star witnesses, who are stated to have taken the appellants to the police station or who had come on hearing the shrieks of the informant and his family members, have been withheld by the prosecution which categorically shakes the root of the prosecution story. 19. Per contra, Sri Vinod Kumar Singh Parmar, learned AGA has vehemently opposed the criminal appeal on the ground that the enmity between the parties is proved, the appellants have been apprehended within the precincts of the house of informant. Although he could not deny the fact that there is no recovery from the appellants and no independent witness has been examined. CONCLUSION 20. Although he could not deny the fact that there is no recovery from the appellants and no independent witness has been examined. CONCLUSION 20. It is an admitted fact that there was an enmity between the informant and the appellants. The appellant no.1 Mohan Lal is the resident of the same village and the appellant no.2 is the relative of a lady residing in the same village belonging to the rival party of the informant. It is true that in the modern society, it is seen that no independent person dares to depose against the dreaded criminals but herein nothing has come up in the judgement of the Trial Court regarding any criminal antecedents of the appellant. It is also an admitted fact that there is no further criminal history of the appellants during the pendency of the appeal. There is no recovery of any robbed material from the possession of the appellants. The witnesses are inimical to the appellants as stated by the witnesses of fact i.e. PW-1 and PW-2. It has been settled by the Apex Court in Sukhar Vs. State of U.P.1 that the testimony of inimical witnesses cannot be accepted without corroboration. The prosecution has deliberately withheld the seven independent witnesses, who could have substantiated their version. The rule of corroboration is not a mere formality, it becomes more vital when the witnesses are found interested one’s. PW-1 has stated that three of the witnesses have been won over but he is silent on the other four witnesses available, thus, the prosecution is unable to stand on its own legs. 21. Investigation has been taken up in a very lethargic and lackadaisical manner. The Investigating Officer did not even care to ascertain the whereabouts and identities of other co-accused persons who are stated to have accompanied the appellants. No effort whatsoever has been made by the Investigating Agency to recover the household items allegedly robbed in the said incident. 22. The discrepancies indicated by the learned Senior Counsel in the G.D. of institution of crime (Ex.Ka-3) are vital as none of the independent witnesses have been examined by the prosecution. No effort whatsoever has been made by the Investigating Agency to recover the household items allegedly robbed in the said incident. 22. The discrepancies indicated by the learned Senior Counsel in the G.D. of institution of crime (Ex.Ka-3) are vital as none of the independent witnesses have been examined by the prosecution. It is the admitted fact that the instant case was instituted in the absence of PW-3 S.I. Jagroop Singh as he was busy in some other case and he was entrusted the investigation after institution at the police station, therefore, the PW-3 is not the witness of the production of the appellants at the police station. The only other witness, who could have proved the said production of accused-appellants by the informant along with other persons of the village, would have been the Constable 620 CP Amar Singh who has instituted the said FIR at the police station and is also the transcriber of the said G.D. However, Constable Amar Singh has also not been produced before the Court. Withholding of these relevant witnesses does not help the prosecution at all. The prosecution has to prove its own case and has to stand on its own legs. It is true that the instant case is not of identification as the appellants were known to the informant and other persons of the locality but the factum of robbery is not proved by the statements of PWs-1, 2 and 3 either. Withholding of material witnesses i.e. seven in number does not help the prosecution and categorically vitiates the trial. 23. The delay in lodging of FIR has proved fatal in this case as there was a chowki barely 3 kilometers from the village as admitted by the PW1 in his cross-examination. This also shakes the very version of the prosecution. The medical examination of the informant after a delay of one and a half day also falsifies its story. 24. Considering the aforesaid facts and circumstances of the case and perusing the record of the court below, this Court is of the considered opinion that the learned Trial Court has overlooked the aforesaid discrepancies in the prosecution case. The impugned judgement and order is found devoid of merits and is liable to be set aside. 25. In view of the above, the appeal is allowed. The impugned judgement and order is found devoid of merits and is liable to be set aside. 25. In view of the above, the appeal is allowed. The impugned judgement and order dated 5.3.1991 passed by Special Judge, D.A.A. Kanpur Dehat in Special Sessions Trial No.33 of 1990 (State Vs. Mohan Lal and Another) is set aside. 26. The appellants Mohan Lal and Sanjay Kumar need not surrender. Their bail bonds are cancelled and sureties are discharged. 27. Let a copy of this judgement along with Lower Court Record be returned to the court concerned forthwith for compliance. A compliance report be also sent to this Court.