Sanjay Maurya vs State of U.P.

@DELETEUPPERDATA

Surendra Vikram Singh Rathore, J.—Under challenge in this appeal is the judgment and order dated 5.3.2012 passed by learned Additional Sessions Judge/Special Judge (SC/ST Act), Court No. 10, Faizabad in Sessions Trial No. 363 of 2009 arising out of Case Crime No. 105 of 2009, Police Station Gosainganj, District Faizabad whereby appellant Sanjay Maurya was convicted and sentenced for the aforesaid offences as under:-

"(i) Under Section 323 I.P.C. Six months Simple Imprisonment and fine of Rs. 500/- with default stipulation of one month simple imprisonment.

(ii) Under Section 3(1)(x) of the SC/ST Act Two years Simple Imprisonment and fine of Rs. 1,000/- with default stipulation of two months simple imprisonment.

Both the sentences were directed to run concurrently.

The case of the prosecution, as averred in F.I.R., was that complainant Ashrafi Lal lodged an F.I.R. at Police Station Gosaiganj on 1.2.2009 at 15:10 hours alleging therein that on 31.1.2009 at about 4:00 p.m. his daughter Km. Poonam, who was residing in the house her of maternal grand mother (Nanihal) and was a student of Ram Bali Degree College, was coming back from the college to her house. While she was on her way then appellant Sanjay Maurya made caste aspersions and abused her. On her resistance, he caused her injuries.

On the basis of this F.I.R., the case was registered. The victim was referred for medical examination, which was conducted on 1.2.2009 at 3:40 p.m. at P.H.C. Gosaiganj and following injuries were found on her body:-

"(i) Mild swelling with contusion size 5 c.m. x 4 c.m., over forehead and root of nose.

(ii) Contused swelling over occipital region size 4 c.m. x 3 c.m.

(iii) Linear abrasion about size c.m., present on right side of face just lateral form right nostril.

(iv) Contused swelling size 4 c.m. x 3 c.m., present top of right shoulder.

(v) Contused swelling size 5 c.m. x 2 c.m., present on right side of back, just below inferior angle of right scapula.

(vi) Abraded contusion size 3 c.m. x 2 c.m., present on lateral aspect of left knee joint radish in colour.

(vii) Abraded contusion 1 c.m. x 1 c.m, present on middle of right great toe.

(viii) Complain of pain all over body.

In the opinion of doctor, all the injuries except injury No. 1, were simple in nature and caused by hard and blunt object and duration were reported to be 24 hours old.

Injury No. 1 was referred for x-ray. In the x-ray report, nothing abnormal was detected.

After completing the investigation, charge sheet was filed.

The case of the defence was of false implication due to election rivalry.

In order to prove its case, the prosecution has examined, PW-1 injured Km. Poonam, PW-2 complainant Ashrafi Lal, PW-3 Upasana, who was accompanying the victim at the relevant time, PW-4 Dr. Om Prakash, who has medically examined the injured, PW-5 Pairokar Janardan Singh, who has proved chik report, and G.D. and other papers prepared by the Investigating Officer as secondary evidence.

No evidence in defence was adduced on behalf of the accused-appellant.

After appreciating the evidence on record, the trial court has convicted the appellant as above, hence the instant criminal appeal.

Submission of learned counsel for the appellant is that the incident took place on the spur of moment. The incident of simple Maarpeet has been exaggerated and has been converted into a caste based offence. It has further been submitted that PW-2 Ashrafi Lal was not an eye-witness and PW-3 Upasana has not supported the prosecution case. It has further been submitted that virtually it is not an offence, which has been committed because of the caste discrimination but the trial court has not properly appreciated the evidence on record and has wrongly convicted the appellant for the offence under Section 3(1)(x) of the SC/ST Act.

Regarding his conviction under Section 323 I.P.C., it has been submitted that the appellant may be granted benefit of Section 4 of the Probation of Offenders Act, 1958 and the victim may be compensated by awarding adequate compensation.

Learned A.G.A. has submitted that the trial court has considered all the aspects of the matter and has rightly convicted the appellant as above, hence the judgment of the trial court needs no interference.

Before proceeding further in the matter, I would like to observe that in the instant case, perusal of the impugned judgment shows that the trial court before proceeding with the appreciation of evidence on record, has first concluded that offence has been committed. On page No. 3 of the judgment, learned trial court has observed as under:--

So it appears that the trial court proceeded to appreciate the evidence with a predetermined mind that the offence has been committed as alleged. This approach of the trial court in writing judgment does not appear to be correct.

In this case F.I.R. has been lodged with delay. The incident as alleged, has taken place on 31.1.2009 and F.I.R. of this case was lodged on the next day at 3:10 p.m. According to the chik report, the distance of the place of occurrence from the police station was only four kilometers. Absolutely no explanation for the delay in lodging the F.I.R. was furnished in the F.I.R. But during trial, an effort has been made by the witnesses to explain the same. PW-2 in his examination in chief has stated that as it was evening, therefore, he could not go to the police station on the same day and on the next day, he got the F.I.R. scribed by some person and after putting his signature, he lodged the F.I.R. but even on the next day this F.I.R. has been lodged at 3:10 p.m. and this delay has nowhere been explained by the prosecution.

PW-2 in his evidence has stated that he got the information of this incident at 3:15 or 3:30 p.m. and this information was given to him by the girls, who were accompanying his daughter at the time of incident. After getting this information, he went to the place of occurrence where his daughter was present. He reached the place of occurrence at about 4:00 p.m. This witness has stated that when he reached the place of occurrence at that time, the victim was unconscious and she regained her senses at the Police Station after about half an hour of reaching there. So according to the statement of this witness, the victim regained her senses after about 24 hours of this occurrence. He has stated that after regaining her senses, the victim told entire incident to him.

PW-1 the victim, on this point in her cross-examination has stated that on the day of incident, her father met her at about 6:30 p.m. When she reached her house then she disclosed about the incident to her father and before that her father was not aware of this incident. Since it was evening, therefore, her father could not go to the police station and on the next day in the morning at 7:00 a.m., her father went to the police station along with her. They went to police station on jeep of her uncle and they reached the police station at about 7:00 a.m. She has further stated that they came back from the police station at about 12:00-1:00 p.m. She has further stated that she was medically examined on the next day after the F.I.R. was lodged. Thus, the statement of PW-1 is entirely in contradiction with the statement of PW-2. According to her evidence, at no point of time she became unconscious. She herself told the incident to her father while he was at home. So the statement of the complainant that he got the information from the friends of his daughter and thereafter he came to the place of occurrence where his daughter was lying unconscious, becomes absolutely false. The statement of the complainant that she became unconscious and regained senses on the next day after about 24 hours also becomes false in view of the statement of the injured. The time when the complainant went to lodge the F.I.R. also stands falsified by the statement of PW-1, who has stated that they went to the police station at about 7:00 a.m. while F.I.R. of this case was lodged 3:40 p.m. She has also stated that they came back at about 12:00 or 1:00 p.m., therefore the prosecution has utterly failed to explain the delay in lodging the F.I.R.

Hon''ble Apex Court has considered the effect of delay in the F.I.R. and has held in the case of Kanhaiya Lal and Others Vs. State of Rajasthan, as under:-

It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of Himichal Pradesh Vs. Gian Chand, , wherein a three-Judge Bench of this Court has expressed thus:- "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

In Ramdas and Others Vs. State of Maharashtra, , this Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution."

Reference may also be made to the pronouncement of Hon''ble the Apex Court in the case of Om Prakash Vs. State of Haryana, .

Since the delay in the instant case remains unexplained, therefore, a duty was cast upon the court to appreciate the prosecution evidence with extra care and caution. Perusal of the judgment shows that the trial court has not adopted a cautious approach in appreciating the evidence. On the contrary, he has first concluded that accused has committed and thereafter proceeded to appreciate the prosecution evidence.

As discussed earlier in this case, the delay in lodging the F.I.R. remains unexplained and the evidence of the complainant shows that an effort has been made by the complainant to exaggerate the incident. He has stated that the victim had become unconscious and she regained her senses only in police station. This statement has been made simply to show that the victim received serious injuries. While in the medical examination report, no such injury was found, which could have resulted into unconsciousness for a period of about 24 hours. Apart from it, the victim has not stated that any moment of time, she lost her senses. So definitely, the complainant was interested in exaggerating the case. Therefore, the submission of learned counsel for the appellant that simple incident of Maarpeet has been given the shape of a caste based offence has force.

Further submission is that this is the reason why PW-3 Upasana, who was a student of same college and used to go to the college and come back from the college with the victim has not even supported the case of the prosecution. But when she was cross-examined by the prosecutor, then she has denied that no such statement under Section 161 Cr.P.C. was given by her during investigation. This witness has stated that she was at some distance, therefore, she could not hear abuses, which are alleged to have been hurled. She has stated that she reached the place of occurrence, after the incident along with other witnesses Pinki and Kamlesh. She has stated that her statement was not recorded by the police during investigation. Though the evidence of this witness supports the date, time and place of the occurrence because she has not denied that any such incident has not taken place. She has further stated that by the time, she reached the place of occurrence, the incident was over. It is really strange that prosecutor has not put any question to this witness regarding any inquiry made by her with the victim of the offence as to what has happened with her.

In this case Investigating Officer was not examined. Submission of learned counsel for the appellant is that due to non examination of Investigating Officer the appellant was prejudiced in his evidence.

Therefore, keeping in view the nature of evidence available, this Court is of the considered view that a plain and simple incident of Maarpeet has been given the colour of a caste based incident. Therefore, so far as the offence under Section 3(1)(x) of the SC/ST Act is concerned, the appellant becomes entitled for benefit of doubt.

In view of the discussion made above, in the considered opinion of this Court, the offence under Section 3(1)(x) of the SC/ST Act, was not made out and the trial court has not appreciated the evidence in correct perspective. Therefore, the conviction of the appellants for the offence under Section 3(1)(x) of the SC/ST Act becomes unsustainable under law. However, this Court does not find any illegality in the conviction of the appellant for the offence under Section 323 I.P.C.

The incident pertains to the year 2009, meaning thereby the appellant has undergone the trauma of criminal trial for a period of 5 years and no previous conviction has been proved against him during trial. Keeping in view the nature of offence proved against him, this Court is of the considered view that the appellant is entitled for the benefit of Section 4 of the Probation of Offenders Act, 1958. There is no legal impediment in extending such benefit.

Injured Km. Poonam has received several injuries but she may be compensated by awarding adequate compensation under Section 5 of the Probation of Offenders Act, 1958.

In the considered opinion of this Court, a total of amount of Rs. 10,000/- as compensation would be adequate compensation. Accordingly, this appeal deserves to be partly allowed.

In view of the discussion made above, this appeal is hereby partly allowed. The conviction of the appellant for the offence under Section 3(1)(x) of the SC/ST Act is hereby set aside. The appellant is acquitted of the charge under Section 3(1)(x) of the SC/ST Act. However, the conviction under Section 323 I.P.C. is hereby confirmed. But instead of sending him to jail to serve out remaining sentence he shall remain on probation of good conduct for a period of one year for maintaining peace and good behaviour. During this period of one year, he shall remain under the supervision of the concerned District Probation Officer. He shall file an undertaking before the court concerned that during this period, he shall not indulge in any type of criminal activity and shall maintain peace and good behaviour. The appellant shall also deposit Rs. 10,000 as compensation amount, which shall be paid to injured Km. Poonam by the court concerned. The appellant will have to file the bonds, as indicated above, within a period of one month from today. During this period of one month, he shall remain on the same bail bonds. The payment of compensation amount shall be a condition precedent to file bail bonds as indicated above. In case the bonds are not filed within the stipulated period, or after filing the bail bonds, the appellant fails to comply with the condition of the bonds then he shall be called upon by the court concerned and appropriate sentence shall be inflicted against him. Compensation amount shall be paid by the court concerned to injured Km. Poonam.

Office is directed to communicate this order to the court concerned forthwith for compliance and lower court record be also sent back.