Elam Singh vs State of U.P. and Others

Barkat Ali Zaidi, J.—This is a revision against an order of acquittal in ST. No. 694 of 1995, State of U.P. v. Subey Singh and 4 Ors., under Sections 147, 323, 149 and 308/149 I.P.C. read with Section 3 (i)(x) of SC/ ST Act dated 22.5.2007 passed by Special Judge SC/ST Act, Meerut.

The prosecution version was that the informant is a member of schedule caste community. On 25.10.1992, around 10.30 O''clock in the night, when he and his two sons Padam Singh P.W.1 and Elam Singh P.W.2 were watering their field in village Maithana within jurisdiction of Police Station Inchauli, in presence of one Luxmi, 10-12 persons carrying Pharsa, Balkati, Ballam, Lathi and country made pistol, descended and nearby tube-well, opened assault on the informant and his two sons, causing various injuries on their persons and also robbed the informant of rupees two hundred. In the course of struggle, the clothes with which they had covered their faces, fell apart, and five of them were identified as Mahipal, Chandra Pal, Subey, Roop Singh and Devendra. On a hue and cry, being raised by the informant and his sons Om Prakash, Rajendra Nand Veer Singh arrived at the scence.

In support of the prosecution version, the prosecution examined P.W. 1 Padam Singh, P.W. 2 Elam Singh and P.W. 3 Dr. Mool Chandra Gupta and P.W. 4 formal witness Constable Sala Uddin. The Trial Sessions Judge did not find the evidence dependable and consequently acquitted the accused. That is why this revision.

Heard Sri Sunil Vashisth, learned Counsel for the revisionist and Sri S.M. Iqbal Hasan, Addl. Government Advocate for the State and perused the record.

It may be stated, at the outset, that there seems no justification in interference in the order passed by the trial Judge. There are divergence and variations in the evidence of the PW 1 and PW 2, which have been pointed out by the Sessions Judge in his judgment. PW 2 Elam Singh has deposed that the accused had taken out Rs. 200/- from the pocket of his father Charan Singh and also robbed of his wristwatch. While his brother Padam Singh PW 2 in his statement has stated nothing about the factum of loot. There are also variations in the weapons, which the accused were carrying and mentioned by the Sessions Judge. PW 7 Pawan Singh has stated that accused Sube Singh was carrying a lathi and Roop Singh a Pharsa while his brother P.W.2 Elam Singh deposed that Sube Singh was carrying Pharsa and Roop Singh a Lathi.

It was argued by counsel of the revisionist that the existence of large number of injuries, provides prima facie evidence against the accused. The simple answer to this argument is that mere existence of injuries is by itself not sufficient to impose liability for having caused the same by any person. It is to be shown by convincing evidence that injuries were caused in a particular incident by specific person, which is missing in this case.

Further the Sessions Judge has rightly pointed out that the accused are said to have carrying a wast repertoire of weapons, but the injuries which appear on the injured persons are all virtually superficial in nature. PW 3 Dr. Gupta has described them as simple. There is as such an obivous element of hyperbole in narration of evidence by the witnesses rendering testimony suspect.

To clarify the aforesaid statement, the various injuries received by injured persons, as given by PW 3 Dr. Gupta, in his injury reports are mentioned below:

Charan Singh: Ext. Ka 2

Contusion 16 cm. x 10 cm. on the lower part left arm-advised x ray.

Contusion 10 cm. x 2 cm. on lower part of left upper arm.

Contused abrasion 5 cm. x 4 cm. at lateral side of the back of left elbow.

Multiple small abrasions in an area of 4 cm. over back of the right elbow joint.

Abrasion 1 cm. x 1/2 cm. x 1 cm. on the left forehead over left eyebrow.

Contused abrasion 4 cm. x 3 cm. over the right side of forehead on the outer side of right eye brow.

Contused abrasion 2.5 cm. x 2 cm. at right side forehead over inner part of right eyebrow.

Contused abrasion 2.5 cm. x 1.5 cm. on the skull 9 cm. above left ear.

Lacerated wound 1.5 cm. x 5 cm. skin deep over left side of skull 10 cm. above left ear.

Padam Singh: Ext. Ka 3

Contusion 7 cm. x 1.5 cm. at the back of left elbow.

Contusion 5 cm x 2 cm. left side of skull on outer and lower part of left side of skull.

Contusion 12 cm. x 2 cm. on the upper part of back

Contusion 9 cm. x 2 cm. on right side of back deep upto scapula.

Contusion 7 cm. x 2 cm. outer and lower part of right upper arm.

Abrasion 2.5 cm. x 1 cm. on outer and upper part of right forearm.

Contusion 3 cm. x 2 cm an upper part of right hand.

Lacerated wound 1 cm. x 0.5 cm. cartilage deep over the back of right shoulder.

Abrasion 6 cm. x 0.4 cm. an middle of left leg over front.

Abrasion 0.5 cm. x 0 5 cm. on the inner side of right upper leg.

Elam Singh Ext. Ka 4

Lacerated wound 1.5 cm. x 0.5 cm x skin deep on the left side of skull 9 cm. of left ear.

Abrasion 6 cm. x 2 cm. at the back of lower part of left forearm.

Abrasion 7 cm. x 2 cm. at back of left shoulder.

Abrasion 12 cm. x 2 cm. left side of chest on the lower part oblique in direction extending to the right side of spinal cord.

Abrasion 7 cm. x 2 cm. on the right side of back 2 cm. below to right scapula.

Multiple small abrasions in an area 4 cm x 1 cm. on the tight hand.

Abrasion 1.5 cm. x 1.5 cm. on the outer and lower parts of left thumb.

Contused abrasion 4 cm. x 3 cm. inner and lower part of left thigh.

Abrasion 2 cm. x 1.5 cm. on inner side of right knee.

It will thus appear from the above narration that the prosecution evidence is seedhing with contradictions, incompatibilities, and improbabilities rendering it undependable. The contention that the accused were wearing mask for covering their faces, and curing the course of struggle, their mask fell down and their faces were uncovered, is obviously a made up theory. No one who wants to hide his face will allow his face to be uncovered easily, and besides them encounter was not so fierce as to cause the masks to fall apart.

We have before us the evidence of only two injured witnesses because the other persons who are said to have come there, have not come to support the prosecution version. The injuries which are said to have sustained by the two witnesses i.e. P.W. 1 and P.W. 2 and their informant father, who is now reported dead, according to P.W. 3 Dr. Mool Chandra, were all simple. The accused are said to have carrying a number of arms including Ballam, Farsa and fire arm but no serious n injury has been caused. The other contradictions, as referred to above, further reduce the credibility of evidence.

The Trial Court, who recorded the evidence saw demeanour of witnesses, came to the conclusion that evidence furnished by the prosecution was not dependable.

IN a revision against acquittal, the assessment of evidence by the trial court can be displaced only when there has been a erroneous assessment of evidence, resulting in miscarriage of justice. Revising Court is not supposed to interfere in the order of the Trial court only because two views on the basis of evidence are possible.

In view of the facts, the trial court was justified in its assessment of the evidence, and it cannot be said, that the trial court was wholly unjustified in arriving at a conclusion, leading to the acquittal, of accused.

Revision dismissed inlimine.