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2022 DIGILAW 186 (ALL)

State of U. P. v. Ramesh

2022-02-14

SUBHASH VIDYARTHI, VIVEK KUMAR BIRLA

body2022
JUDGMENT : Subhash Vidyarthi, J. 1. Heard the learned AGA on the application seeking leave to file appeal under Section 378 (3) Cr.P.C. 2. By means of the instant application, the appellant-State has sought leave to file appeal against the judgment and order dated 21.01.2006 passed by the learned Sessions Judge, Baghpat in Session Trial No. 330 of 2004 (State vs. Rmesh and another) acquitting the respondent-accused from the charge of offence punishable under Sections 302/34 IPC. 3. The prosecution case, briefly stated, is that on 26.06.2004 at 01:30 a.m., the informant Leela Singh son of Kale Singh lodged a report (Exhibit A-1) alleging that on 25.06.2004 at 08:30 p.m., Karan Singh came to his house and informed that somebody had stabbed the informant’s brother Jaidayal in Naiyon Wali Gali and he is lying there. The informant and his family members went there and he took his brother in a Maruti Car to Narendra Mohan Hospital, where the doctors examined and reported him to be dead. After putting the dead body in mortuary, he went to lodge the report. On the basis of the aforesaid report, a case was registered against unknown accused persons. 4. On 27.06.2004, the informant gave another report (Exhibit A-2) stating that after cremation of the dead body of his brother, people were visiting his home and were talking about the murder of his brother Jaidayal, from which he came to know that his brother had been killed by the accused Dheeraj and Ramesh, both sons of Durjan Singh, due to animosity of previous election of Gram Pradhan. A short while before his murder, the deceased Jaidayal had stopped at the shop of Karan Singh and thereafter he was coming home through Naiyon Wali Gali and Radhe son of Chetan had seen the accused-respondents Dheeraj and Ramesh following the deceased in the lane. After Jaidayal got injured, the accused Dheeraj and Ramesh were seen running towards his shop in great haste, by Gajendra son of Jaipal Singh and Karmveer Singh son of Shakru Singh. At that time only, the informant came to know that after losing the elections the accused-respondents had stated many times that although they had lost the election, they would not let Jaidayal complete the five years’ term. The informant got this information from Ramesh son of Gopi and Sakru son of Khushi Ram. At that time only, the informant came to know that after losing the elections the accused-respondents had stated many times that although they had lost the election, they would not let Jaidayal complete the five years’ term. The informant got this information from Ramesh son of Gopi and Sakru son of Khushi Ram. In the second information, the informant stated that he could not mention these facts in the FIR as at that time he did not know these facts. 5. On this subsequent information, a case was registered against the accused-respondents Ramesh and Dheeraj. After investigation, the police submitted a charge sheet against the accused-respondents under Section 302/34 IPC. The prosecution examined P.W. 1 -Leela Singh -the informant, who is the brother of the deceased. P.W. 1 supported the allegations levelled in the FIR as well as subsequent information on which the case was registered. 6. P.W.2 – Gajendra was produced as an ocular witness who stated that in the evening of 25-06-2004 he was returning home from Devi Mandir and Karmveer was accompanying him. When P.W.2 and Karmveer were passing through Naiyon Wali Gali at about 08:30 p.m., they saw that the respondent no.2 – Dheeraj had caught hold of the deceased Jaidayal and the respondent no.1 - Ramesh was stabbing him. At the same time, Mukesh and Leelu also came there carrying a torch and they challenged the accused persons, whereupon the accused persons left Jaidayal and walked away from the side of the P.W.2. Jaidayal’s wife Rajwati had defeated Dheeraj’s wife-Babli in election of Gram Pradhan due to which Dheeraj was annoyed with Jaidayal and he used to say that he will not let him complete the five years’ term. 7. P.W. 3 is the Sub-Inspector who had prepared the inquest report in the hospital’s mortuary. P.W.4 is the Constable-Clerk who has registered the report. P.W.5 is the doctor who had conducted post-mortem examination on the deceased’s dead body, who stated that the deceased died of stab wounds. P.W.6 is the Investigating Officer. 8. In defence, the accused persons produced three witnesses. D.W.1 -Karan Singh is the person who is said to have given information on 26-06-2004 at 8:30 p.m. that the deceased had been stabbed. He has stated that his shop is situated 100 to 125 yards away from the place of occurrence. P.W.6 is the Investigating Officer. 8. In defence, the accused persons produced three witnesses. D.W.1 -Karan Singh is the person who is said to have given information on 26-06-2004 at 8:30 p.m. that the deceased had been stabbed. He has stated that his shop is situated 100 to 125 yards away from the place of occurrence. The deceased came to his shop at about 09:45 p.m. and he stayed there for about 15 minutes. Thereafter he went away taking bidi, match box and lemon and after about five minutes since he left, D.W. 1 got information that Jaidayal had been attacked. He went to the spot and till then Jaidayal was alive. He did not see Gajendra and Lilu there. He had gone to Jaidayal’s house to give information of his being injured and had called the deceased’s brother Leela Singh, Deepchand, Jaidayal’s son Sanju and Gajendra son of Jaipal, who is also from the same family. He had helped in Jaidayal being put in the car. 9. D.W.2 -Satish Kumar said that no such incident had occurred till 09.30 p.m. and he received information of the incident at about 09:45 p.m. but he did not hear the names of the accused persons as the assassins of Jaidayal. D.W. 3 – Dheer Singh is the Pujari of Durga Mandir. He said that he recognises each and every person who visits the temple and Gajendra and Karmveer did not come to temple in the evening on the date of the incident. D.W. 4 – Karmveer, regarding whom P.W.2 had stated that he was returning from Devi Mandir in the evening of 25.06.2004 along with Karmveer; stated that there are total four temples in the village, out of which three are of Lord Shiva and one is of the Goddess. Dheer Singh is the Pujari of temple of the Goddess. He stated that the deceased was killed at about 10:15 p.m. He did not see the incident and did not hear from anybody that the deceased had been killed by the accused persons. 10. After taking into consideration the statement of all the witnesses, the learned court below came to a conclusion that the prosecution has failed to establish the charges against the accused persons beyond reasonable doubt and acquitted the accused persons by giving them benefit of doubt. 11. 10. After taking into consideration the statement of all the witnesses, the learned court below came to a conclusion that the prosecution has failed to establish the charges against the accused persons beyond reasonable doubt and acquitted the accused persons by giving them benefit of doubt. 11. The appellant-State has filed the instant application seeking leave to file appeal under Section 378 (3) Cr.P.C. on the grounds that there is sufficient evidence to prove the complicity of the accused persons in commission of the crime but the learned Trial Court has acquitted them without appreciating the material evidence on record. There is no contradictions in the statements of the witnesses and if there are any minor contradictions, the same have occurred only because of lapse of time and loss of memory. The accused persons had a strong motive which was due to the dispute arising out of election of Gram Pradhan. Even if there was a discrepancy in the time of incident, it would not vitiate the prosecution case. 12. We have gone through the statement of the witnesses in detail and scrutinised the findings of the learned court below in light of the grounds of challenge raised by the learned AGA. 13. In the FIR of the incident lodged by the informant (P.W.1) on 26-06-2004 (Exhibit A-1), the allegations are against unknown persons. In the second information lodged on 27.06.2004 (Exhibit A-2), the informant has alleged that from the people visiting his home after cremation of his brother, he came to know that his brother had been killed by the accused-respondents and he had mentioned Gajendra and Karmveer as having seen the accused persons running away from the place of occurrence in a great haste. The learned court below has recorded that after lodging the FIR on 25.06.2004, no subsequent intimation of the same incident could have been registered. No proceedings could have been initiated on the basis of the subsequent report lodged on 27.06.2004 and the second report is not admissible in evidence. 14. In Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348 , the Hon’ble Supreme Court formulated the following principles regarding Second FIR: - “58.2. No proceedings could have been initiated on the basis of the subsequent report lodged on 27.06.2004 and the second report is not admissible in evidence. 14. In Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348 , the Hon’ble Supreme Court formulated the following principles regarding Second FIR: - “58.2. The various provisions of the Code of Criminal Procedure clearly show that an officer-in-charge of a police station has to commence investigation as provided in Section 156 or 157 of the Code on the basis of entry of the first information report, on coming to know of the commission of cognizable offence. On completion of investigation and on the basis of the evidence collected, the investigating officer has to form an opinion under Section 169 or 170 of the Code and forward his report to the Magistrate concerned under Section 173(2) of the Code. 58.3. Even after filing of such a report, if he comes into possession of further information or material, there is no need to register a fresh FIR, he is empowered to make further investigation normally with the leave of the court and where during further investigation, he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. Thus, there can be no second FIR and, consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. 58.4. Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the station house diary, the officer in charge of the police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report(s) to the Magistrate. A case of fresh investigation based on the second or successive FIRs not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution. 58.5. The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.” 15. In State of M.P. v. Ratan Singh, (2020) 12 SCC 630 , the Hon’ble Supreme Court emphasized the above principles and further held that: - “8. As emphasised by this Court in Amitbhai Anilchandra Shah v. CBI, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154, and consequently there cannot be a second FIR. Rather it is absurd or ridiculous to call such information as second FIR. In Subramaniam v. State of T.N., this Court observed that if an FIR is filed after recording the statement of the witnesses, such second information would be inadmissible in evidence. Moreover, in Nallabothu Ramulu v. State of A.P., the Court was of the view that the non-treatment of statements of injured witnesses as the first information cast doubt on the prosecution version. 9. Thus, not only was there a delay in filing of the FIR (which remained unexplained) which was taken as the basis of the investigation in this case, but also there was a wilful suppression of the actual first information received by the police. 9. Thus, not only was there a delay in filing of the FIR (which remained unexplained) which was taken as the basis of the investigation in this case, but also there was a wilful suppression of the actual first information received by the police. These factors together cast grave doubts on the credibility of the prosecution version, and lead us to the conclusion that there has been an attempt to build up a different case for the prosecution and bring in as many persons as accused as possible.” 16. Immediately after registration of the FIR on the information given by the informant Leela Singh on 26-06-2004, the investigation of the case commenced. There is no provision for lodging a second FIR and all statements or information given to the police regarding the incident, in respect of which an FIR has already been registered, are to be treated as statements given to the police in the course of investigation. 17. Section 162 Cr.P.C. provides as follows: “162. Statements to police not to be signed : Use of statements in evidence.— (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.” 18. Thus there is a prohibition against any statement made by any person to a police officer in the course of an investigation being signed by such person and being used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Therefore, the learned Court below has rightly held that the second information given by the informant to the police on 27-06-2004 (Exhibit A – 2) is inadmissible in evidence and no proceedings could be initiated on the basis of this report. 19. Now we proceed to take up the first ground of learned AGA that all the eye witnesses had proved incident and the learned court below has not appreciated with their statements in the right prospective. 20. 19. Now we proceed to take up the first ground of learned AGA that all the eye witnesses had proved incident and the learned court below has not appreciated with their statements in the right prospective. 20. P.W.2 – Gajendra is the sole witness who is said to be an eye witness of the said incident. P.W. 1 – Leela Singh has stated that Gajendra is related to him. Had he witnessed the incident, he must have given information of it to Leela Singh who reached the spot of the incident immediately after the incident. However, P.W. 1 has stated that he came to know about involvement of the accused persons on 27.06.2004. The conduct of P.W.2 – Gajendra in not giving information of the incident to PW-1 for two days is not at all natural and this makes the correctness of his statement doubtful and unbelievable. 21. P.W.2 – Gajendra has stated that he and Karmveer had witnessed the incident in the light of a torch and at the same time Mukesh and Lilu also came from southern side carrying a torch and when they challenged the accused persons in torch light, the accused persons left the deceased and walked away from the side of P.W.2. He said that he had recognized the accused persons and raised an alarm taking their names, that they have killed Jaidayal and several persons had come hearing his call. Admittedly, the informant P.W. 1 had also reached the place of incident immediately. If the claim of P.W. 2 was true, P.W. 1 would have come to know that his brother had been killed by the accused persons and in such a situation, the names of the accused persons as well as the alleged ocular witness, P.W.2 -Gajendra and Karmveer must be there in the FIR – Exhibit -A1. However, the fact that Exhibit-A1 was registered against unknown persons, indicates that P.W.2 had not witnessed the incident. 22. P.W.2 -Gajendra has stated that he witnessed the incident along with Karmveer but Karmveer has appeared as D.W. 4 and he has clearly stated that he did not see Jaidayal being killed. He has also said that in the evening of the incident, he did not visit the temple of the goddess with Gajendra. This also proves that P.W.2 – Gajendra was not present at the time and place of occurrence and his statement is false. He has also said that in the evening of the incident, he did not visit the temple of the goddess with Gajendra. This also proves that P.W.2 – Gajendra was not present at the time and place of occurrence and his statement is false. 23. Therefore, the ground taken by the learned AGA that the eye witness account of the incident had been ignored by the learned court below, is without any force. The learned Session Judge has examined the statement of the witnesses in detail and has recorded a finding that P.W.2 – Gajendra is not an eye witness of the incident and we find that the aforesaid finding is based on a proper appreciation of the evidence available on record and is not at all perverse. 24. Regarding the second ground of seeking leave to file appeal i.e. the accused persons had a strong motive to commit the crime, suffice it to say that firstly the existence of motive alone is not sufficient to convict any accused persons of an offence in absence of sufficient material being available to establish their guilt. Secondly, wife of the deceased-Jaidayal was elected as Pradhan defeating Babli wife of the accused-respondent no.2, Dheeraj but neither any challenge to her election was made by filing any case nor did any dispute or altercation follow it. Moreover, the murder of Jaidayal would not terminate the tenure of his wife as the Gram Pradhan. The wife of the deceased had already completed four years out of the five years’ term as Gram Pradhan and the remaining period of merely one year of the term of the deceased’s wife cannot form sufficient ground of murder of Jaidayal due to defeat of Babli-wife of Dheeraj four years ago. 25. Keeping in view the aforesaid fact, we find that the finding of the learned court below that alleged motive of commission of the offence by the accused persons is not sufficient to indict them on the offence suffers from no infirmity. 26. Regarding the last ground pressed by the learned AGA that the discrepancy in the time of incident did not weaken the prosecution case, the learned court below has recorded that the FIR Exhibit-A1 initially did not contain any time of the incident and it mentions the date of incident as 25-06-2004 and time “Adam Tehrir”, which means absent in the report. Subsequently, it has been scored off and 08:30 p.m. has been mentioned with a different ink. This indicates that till lodging of the FIR, the informant did not know the time of the occurrence. 27. P.W. 3, Sub-Inspector Geeta Singh who had prepared the inquest report – Exhibit -A 3, has stated that the date and time of the incident was mentioned in the inquest report as 10:15 p.m. as per opinions of the Panch and the time of death has been mentioned as 10:45 p.m. This fact is corroborated from the fact that Narendra Mohan Hospital is situated about 20 to 25 Kms. away from the place of the incident. The informant took his injured brother to Narendra Mohan Hospital in a Maruti Car. During night hours it was possible to reach Narendra Mohan Hospital from the place of the incident within 25-30 minutes. The time of admission of the deceased in Narendra Mohan Hospital is 10:45 p.m., which indicates that the incident did not occur at 08.:30 p.m., but it occurred at around 10:00 p.m. P.W. 1 – Karan Singh also stated that the deceased had come to his house at about 09.45 p.m. and he stayed there for about 15 minutes and thereafter went away. 28. Keeping in view the aforesaid facts the learned court below recorded a finding that the incident did not occur at 08.30 p.m. but it occurred at about 10:00 p.m. and the time of incident has been mentioned in the FIR at 08.30 p.m. by making interpolations subsequently on the basis of legal advice, which obviously would have an adverse impact on the prosecution case. 29. In Jayamma v. State of Karnataka, (2021) 6 SCC 213 , the Hon’ble Supreme Court has been pleased to reiterated the well settled law that the power of scrutiny exercisable by the High Court under Section 378 CrPC should not be routinely invoked where the view formed by the trial court was a “possible view”. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to reappreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact. 30. As the testimony of the sole eye witness P.W.2 has been proved to be false and as the alleged motive of the offence has also not been found sufficient to indict the accused persons, we find that the judgment and order passed by the learned Session Judge acquitting the respondent-accused persons does not suffer from any infirmity and the findings forming basis of the aforesaid judgment are in any case, not perverse. The grounds for seeking leave to file appeal against the aforesaid judgment and order are without force. 31. The application seeking leave to file an appeal is rejected. 32. Since the application granting for leave to appeal is rejected, consequently the appeal also stands dismissed.