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Judgment
Pankaj Naqvi, J.—We have heard Sri A.K. Srivastava, learned A.G.A. and Sri Rajeev Upadhyay learned counsel for the informant and Sri Shiv Ram Singh, learned counsel holding brief of Sri Janardan Yadav, learned counsel for the respondent in support of the admission of the respective appeals preferred by the State and the informant respectively, which challenges the judgment of acquittal dated 04.11.2011 passed by Addl. Sessions Judge (Temporary Ex-Cadre Post), Court No. 2, Azamgarh in Session Trial No. 142 of 2002 acquitting the respondents of charges under sections 323/34, 325/34, 307/34 and 506 of IPC. The prosecution case originated on a written report (Exbt. Ka1) dated 03.06.2001 lodged by PW-3 (father of Nisar Ahmad, injured/PW-1) alleging that there existed previous enmity between the informant and respondents, namely, Hasan Raza, Ansar and Aftab on account of pending litigations, in which his son Nisar Ahmad (PW-1) used to do pairvi of the case. The said respondents conspired to kill the son of informant. It was alleged that on 26.05.2001 at about 4:00 P.M. while his son Nisar Ahmad (PW-1) was riding his scooter on way back to his house and was on way to Jiyanpur via Bakhalis Bazar and was yet to reach non-pakka road of village Alipur, the three respondents came in an Armada Car (Registration No. 54/A 0779), driven by respondent Ansar with other two respondents Hasan Raza and Aftab sitting next to him, near the scooter of PW-1 and upon exhortations of respondents Hasan Raza and Aftab that PW-1 be not spared today and he be crushed to death, respondent-Ansar Ahmad dashed the four-wheeler against his scooter, whereupon PW-1 was thrown out of his two-wheeler on the road. The respondents again reversed the vehicle and ran the vehicle over PW-1 and while they were in the process of again running-over the vehicle, the scooter got entangled with a tree, and upon noise and commotion generated in the process, accused persons fled from the scene of occurrence. It was alleged that upon arrival of Arman (PW-2) along with other persons, injured (PW-1) was taken to the District Hospital, wherein it was reported that he had sustained fracture in the pelvic region. As his condition was deteriorating, PW-3 the informant was advised to take his injured son to the hospital at BHU, Varanasi where it was alleged that as informant was busy in attending on the injured in the absence of other family members, no report could be lodged earlier, which was now lodged upon his recovery.
Surendra Upadhyay, Head Moharrir at police station- Jiyanpur, Azamgarh (not examined) registered the FIR (Exbt. Ka8) under his signatures, made entries in the General Diary, as is evident from the statement of PW-5 Inayat Ali, the I.O. Of the case, who identified the signatures of the said Head Moharrir.
The prosecution, in order to bring home the charges, examined eight witnesses. PW-1, Nisar Ahmad was the injured- eye-witness to the occurrence. PW-2 Arman also claimed himself to be an eye-witness. PW-3 Abdul Haq is the informant and the father of the injured Nisar Ahmad. PW-4 Dr. B.N. Chaubey, the Medical Officer In-charge of District Hospital, Azamgarh examined the injuries of PW-1 on 26.05.2001 at 4:45 P.M., prepared the injury report under his signature (Exbt. Ka2). PW-5 Inayat Ali was the Investigating Officer, who identified the signatures of Surendra Upadhyay, the Head Moharrir at P.S. Jiyanpur, Azamgarh, who registered the FIR (Exbt. Ka8). PW-8 Dr. Amit Rastogi was the Orthopaedic Specialist in the hospital of BHU Varanasi, who also examined the injured on 27.05.2001. He stated that as the injured refused to undergo orthopaedic surgery, he, on his own request, left the hospital on 30.05.2001. PW-7 Gufran and PW-8 Arshad claimed themselves to be the eye-witnesses, but were declared hostile.
The defence set up was the plea of denial and false implication.
Learned counsel for the appellants submitted that the view taken by the court below while acquitting the respondents for the offences charged is patently perverse as oral evidence and the medical evidence evidently established the commission of the offence. They further submitted that delayed lodging of the FIR and that of the statement u/s 161 Cr.P.C. was also sufficiently explained.
Per contra, learned counsel for the respondents refuting the aforesaid submission urged that the view taken by the court below was a reasonable, probable and a sound view on the basis of quality of evidence on record to which no perversity could be attached.
PW-3, informant alleged that in the process of the vehicle being run over his son PW-1, Armada vehicle got entangled with the two-wheeler of PW-1, due to an intervening tree. However, after perusing the site-plan (Exbt. Ka5), we do not find the presence of any tree either on the road or in its vicinity, which could have facilitated the entanglement of a four-wheeler with a two-wheeler. PW-1 (injured) claimed himself to be an eye-witness to the occurrence. He was stating that while he was coming on his two-wheeler from his house and was proceedings towards Jiyanpur via Bakhalis Bazar, the Armada vehicle driven by respondent Ansar in which respondents- Aftab and Hasan Raza were sitting in the front seat next to Ansar and upon exhortations made by respondents Aftab and Hasan Raza, respondent Ansar is alleged to have hit the two-wheeler of PW-1, which threw PW-1 from his scooter on the road. He was also stating that the respondent Ansar ran over his Armada vehicle over him twice, in which he sustained a fracture in his hand and in the pelvic region and that it was only when an attempt for the third time was being made to run over the four-wheeler over him it got entangled with his scooter. However, PW-2, Arman, who also claimed himself to be an eye-witness was stating in his cross-examination at page-28 of the paper-book that he was returning from his house after having his lunch and when he was out of his village which was at a distance of three kilometers, he saw that 10-20 people had assembled on the road and he saw that the scooter was entangled with the Jeep. Thus what he saw was an entangled Jeep with the scooter and the respondents fleeing away from the scene of occurrence. He admitted that he had an eye-trouble as his retina had ruptured while playing cricket for which he had to undergo an eye-surgery. He admitted that he does not wear any power-glasses. PW-3, the informant, was not an eye-witness to the occurrence as he got information of the same at 4:30 P.M. when the incident had taken place at 4:00 P.M. PW-7, Gufran and PW-8 Arshad claimed themselves to be eyewitnesses, but they did not support the prosecution case and were declared hostile.
Considering the evidence of PW-2, it could not be said that he was an eye-witness to the occurrence as what he saw was running away of the accused persons from the scene of occurrence. Moreover, eye-sight of at least one of the eyes of this witness appears to be poor as he underwent retinal surgery and does not wear power-glasses. This was only possible when the lens power of eye is so poor that no power is recommended, and only with a view to provide a uniform look to the face, spectacle is worn. Thus, the quality of testimony of PW-2 was not of such class and quality that we can hold him to be a reliable and a trustworthy witness. We view his evidence with suspicion.
What further appears from the evidence of PW-2 was that the reason for him to be around the place of occurrence was that he had gone to take his lunch from his shop to his village. We find this reason assigned by him for his presence not acceptable on his own evidence. He stated that his shop was closed on that day. So why should he go to his village for taking lunch? Again, he stated that the time for going to his house for taking lunch was 1:30 P.M. on days, but he left Jiyanpur Bazar on that particular day on 3:30 P.M. Why he was changing his lunch time is not known to us especially when his general store was closed on that day? These circumstances make his evidence suspect and him an unreliable witness.
The case of PW-1(injured) was that respondents borne four-wheeler was run twice over him which resulted in the fracture of his hand and of the pelvic region. PW-4 Dr. B.N. Chaubey examined the injuries of PW-1 on 26.05.2001 at 04:45 P.M., prepared injury report (Exbt. Ka2) and reported the following eight injuries:--
(1) A contused swelling of 7 cm X 6 cm on middle of forehead including root of nose. Advised X-ray skull and X-ray face
(2) A lacerated wound 2 cm X 0.5 cm X depth kept under observation (kuo) on bridge of nose just below injury No. 1. Advised X-ray face.
(3) A lacerated wound 2 cm X 1 cm X depth kept under observation on palmer aspect of right hand 4 cm below right wrist joint. Advised X-ray right hand and wrist joint.
(6) A lacerated wound 2 cm X 0.5 cm X depth kept under observation between little and ring finger on dorsum of right hand. Advised X-ray right hand.
(7) A contused swelling 10 cm X all round the right forearm including wrist. Advised X-ray right forearm & wrist and hand.
(8) Multiple abraded contusion 6 in number anterior aspect of abdomen (right) and lower chest (right) in the area of 21 cm X 13 cm 11 cm below right nipple, biggest 2 cm X 0.5 cm, smallest 0.5 cm X 0.5 cm. Advised X-ray chest and X-ray abdomen.
(9) Contused swelling 18 cm X 10 cm on right thigh 11 cm above right knee joint, pain in right pelvis. Advised X-ray pelvis and X-ray right thigh.
(10) A lacerated wound 2.5 cm X 1.5 cm X depth kept under observation on anterior aspect of right leg 15 cm below right knee joint. Advised X-ray of right leg.
Opinion- All injuries kept under observation caused by hard blunt object. Duration fresh.
Although PW-4, the doctor was stating that the injuries reflected in the injury report (Exbt. Ka2) could be caused on account of a heavy vehicle having run over the injured, but considering the nature and site of injury it could not be attributed to the injured being a run over by a four-wheeler. We do not share the contrary opinion given by PW-4/the doctor, as PW-6, the Orthopaedic of the hospital of BHU, Varanasi stated that the body of the injured did not bear any mark of the trade of the tyre. Thus, we have no hesitation in holding that the alleged injuries (Exbt. Ka2) could not be attributed to a four-wheeler running over PW-1 (injured).
The occurrence is dated 26.05.2001 at about 4:00 P.M., whereas PW-3, father of the PW-1 lodged the report on 03.06.2001. The case of PW-1 was that as he was medically unfit, unable to instruct PW-3 to lodge a prompt FIR. However, what appears from evidence of PW-1 at page-21 is that the witness was stating that when he reached the District Hospital, he was fully conscious and that his father (PW-3) too had arrived. He claimed that he had no conversation with his father (PW-3). This was strange and unusual conduct on behalf of PW-1, as if he was fully conscious and had suffered injuries in the alleged attack, nothing prevented him in narrating the alleged deliberate attempt on the part of respondents to kill him to his father (PW-3). This fact assumes significance when PW-4, the doctor, who attended to his injuries at District Hospital did not find his condition to be grave and serious so as not to make any statement even to his father (PW-3). Thereafter injured was referred to the hospital at BHU, Varanasi, where he was admitted as per PW-6, Dr. Amit Rastogi, the Orthopaedic Surgeon of hospital in BHU on 25.07.2001. PW-6 also did not disclose that the condition of PW-1 was critical or precarious, so as to rendering him unable even to talk to his father (PW-3). PW-1, at page-22 of his cross-examination stated that it was only on the second day at BHU that he disclosed to his father about the occurrence. Thus, it can be safely inferred that it was only on or about 28.05.2001 that PW-3 acquired knowledge of the nature of occurrence from his son PW-1. But the FIR was lodged after inexplicable delay of six days, i.e., on 03.06.2001. PW-6 stated that after five days of stay in BHU Hospital, injured was discharged on his own request. PW-1 at page-22 of the paper-book was stating that after discharge from BHU, he got himself admitted at the private hospital of one Dr. Javed (not examined), wherein he remained admitted for almost 2-1/2 months, where his alleged statement u/s 161 Cr.P.C. was recorded on 20.06.2001. The alleged explanation that the delay had occasioned on account of medical condition of the injured (PW-1) cannot be accepted as nowhere PW''s-4 & 6, the doctors, who attended to the injured ever reported the precarious and critical condition of the injured, due to which he could not even had talked to his father about the occurrence.
Thus what we find from the aforesaid discussion of evidence is that in absence of any evidence on record that the condition of the injured PW-1 remained critical and precarious, so as not to lodging the FIR promptly, a delayed recording of statement as late as on 20.06.2001 in respect of the occurrence, which took place on 26.05.2001, makes the FIR not only ante-timed, but the witness not reliable.
PW-5, Inayat Ali, the Investigating Officer of the case, could not disclose as to why and under what circumstances, the Armada vehicle was removed from the scene of occurrence and brought to the police station on 26.05.2001. He was candid enough to admit at page-44 of the paper-book that he did not record the statement of any constable, who could have brought the said vehicle at the police station on 26.05.2001. The admitted fact that the vehicle was brought to the police station indicates that it was seized. The evidence of PW-5 also points out the ill-fated scooter was also brought to the police station. Thus, we have sufficient evidence to indicate that the police had definite information about the occurrence having taken place on the road, which information had either been given to the police by some one interested or it had itself drawn up the FIR. But we do not have anything on record as to what happened of the report upon which the police had seized the two vehicles. Thus, his evidence was leading to only one irresistible conclusion that the prosecution was withholding a vital evidence regarding aforesaid vehicles being involved and seized in connection with an occurrence. If this be the conduct of PW-5, Investigating Officer that he does not even examine the constables, who had allegedly brought the four-wheeler and the scooter from the scene of occurrence to the police station, then the probabilities suggested by the defence that the said vehicle was used as a ploy to rope in the respondents in the alleged occurrence due to previous enmity could not be ruled out. This inference is further cemented when PW-5 admitted that he did not make any efforts to trace the original owner of the said vehicle.
Thus, what we find from the discussion of the aforesaid evidence is that the occurrence as alleged by the prosecution was highly doubtful, the nature of injuries of PW-1 could not be caused by running the vehicle over PW-1 and removal of the vehicles from the scene of occurrence to the police station under suspicious circumstances together with the delayed recording of FIR and statement of the injured section 161 Cr.P.C. belatedly are some of the frailties attached to the case of the prosecution, which lead only to a conclusion that the prosecution had miserably failed to establish its case beyond a reasonable doubt.
We do not find any perversity in the view taken by the court below in the appreciation of evidence, its analysis and in drawing inferences. Both the appeals lack merit and are hereby dismissed.