State of U.P. vs Amit

Dharnidhar Jha, J.—The present Government appeal is directed against the judgment of acquittal dated 3.6.2003 passed by the learned Additional Sessions Judge. Court No. 12, Ghaziabad in Session Trial No. 478 of 2001 by which the solitary respondent Amit was acquitted of the charge u/s 307. I.P.C. The prosecution case is contained in Exhibit Ka-1, the written report of P.W. 1 Jitendra Singh, it was stated by him that while he was going to his house from his gher (probably, the cattle shed), he was accompanied by his villagers, Soran Singh (not examined) and Lahri Singh (P.W. 2). When the informant reached at the place in front of the house of one Kripal, a Tata 407 vehicle came from the opposite direction. The present respondent Amit was also coming behind the informant and all of a sudden he hit the informant in his back, as a result of which he shouted and fell down. His villagers Soran Singh (not examined) and Lahri Singh (P.W. 2) attempted to apprehend respondent Amit, but he ran away from there and to disappear in the village P.W. 1 stated that he and others of the village had seen the respondent assaulting and injuring him as a result of which he was bleeding from his waist.

On receipt of Exhibit Ka-1, the F.I.R. of the case Exhibit Ka-4, was drawn up and the investigation was taken up by P.W. 6, S.I., R.L. Yadav.

It has been stated by P.W. 6, the Investigating Officer that on the basis of Exhibit Ka-1 the F.I.R. of the case was drawn up by constable Sheesh Ram Singh and, accordingly entries in the general diary in respect of the receipt of the written report and investigation of the case were also made by the said constable. Sheesh Ram Singh. He took up the investigation of the case on 27.6.2000 and recorded the further statement of P.W. 1. Jitendra Singh on 28.6.2000 and obtained the copy of injury report and proceeded to the village where he searched for the witnesses and accused person, but could not find any of them. On 30.6.2000 he again reached village Manak Chauk and was handed over the blood stained clothes of the injured by his father, namely, Jag Sharan (P.W. 4) and he seized it and prepared the seizure memo, Exhibit Ka-2 on the same day, i.e., 30.6.2000. He recorded the statement of P.W. 4 and witnesses, like, Soran Singh (not examined) and Lahri Singh (P.W. 2) and also inspected the place of occurrence and prepared the site plan. Exhibit Ka-6. According to the site plan, the house of Kripal which was situated on the eastern side of the road and on its western side the houses of Lallu and others were located. The injured was shot at the road indicated by letter "A" and the accused ran away towards the west from the place of occurrence into the village which direction has been shown by () indicating towards west P.W. 6 further stated that he recorded the statements of other villagers and searched for the accused persons, but could not find them and, ultimately, he came to learn on 11.7.2000 that the accused had surrendered in the court of the Chief Judicial Magistrate and had been remanded to custody. He took the statement of the accused in jail and obtained a copy of the x-ray report of the injured on 20.7.2000 and recorded the statement of P.W. 4, the father of the informant. Jag Sharan on 24.7.2000 and after finding materials sufficient, sent the accused up for trial.

During cross-examination P.W. 6, S.I. R.L. Yadav stated that he recorded further statement of the injured on 27.6.2000 at about 10.00 a.m. and, thereafter, he forwarded him to Government Hospital, Garh, but did not go there himself with the injured.

P.W. 1 the informant and injured of the case was examined by Dr. S.K. Verma, P.W. 5 in Primary Health Centre, Garh on 27.6.2000 at 9.30 p.m. and he found (I) multiple lacerated wounds in an area of 8 cm. x 10 cm. in the back and middle 1/3rd of the chest on its right side. Each of the injury was measuring about 0.6 cm. x 0.6 cm. P.W. 5, Dr. S.K. Verma did not probe the depth of the circular lacerated wounds but found the margins inverted, irregular. The wounds were bleeding profusely. P.W. 5 found another lacerated wound measuring 0.6 cm. x 0.6 cm. x depth not probed on upper l/3rd of the back of the chest. 4 cm. lateral to mid line, margin irregular and inverted and the injury was bleeding. He found another lacerated wound measuring 0.6 cm. x 0.6 cm. x depth not probed on the back of left scapular area. All the above injuries were fresh and bleeding with margin irregular and inverted. P.W. 5 was of the opinion that the injuries were caused by some fire arm object.

The defence of the respondent was of false implication and his non-participation in the commission of the offence.

The prosecution examined as many as six witnesses to bring the charge home to the accused. It has already been pointed out that the informant and the injured of the case, Jitendra Singh, was examined as P.W. 1, while his father, Jag Sharan, who produced his blood stained clothes and also accompanied him upto the hospital alongwith others, by a tractor trolley was examined as P.W. 4. Jag Sharan, P.W. 4 had stated in his evidence that his son was referred from Primary Health Centre, Garh to Medical College Hospital, Meerut and there he was treated and some surgery was also performed upon him. P.W. 1, the informant has been supported on the manner of occurrence by P.W. 2 Lahri Singh who is a witness named in the F.I.R. He stated that he and Soran Singh (not examined) were walking together behind the accused who had fired in the back of P.W. 1. P.W. 3, Hatam Singh was the witness to the seizure of the blood stained clothes of P.W. 1 and had signed the seizure memo. Exhibit Ka-2. The defence did not examine this witness.

The learned trial Judge while acquitting the accused recorded that P.W. 1 did not specify in his written report that the respondent had fired a shot by a fire arm in his back and the doctor who treated him at Primary Health Centre or in Medical College, Meerut, had also not been examined by the prosecution. Not only that the x-ray report was not produced and further Kripal, in front of whose house, the occurrence had taken place, had also not been examined by the police nor cited as a witness in the charge-sheet. The learned trial Judge also held that the motive had hot been established and, as such, was of the view that on account of the above deficiencies in the prosecution case the respondent deserved to be acquitted as the prosecution had miserably failed in establishing the participation of the respondent in the commission of offence.

It was contended by the learned A.G.A. that the learned trial Judge was completely in error in finding the deficiencies in proving of the charges. It was submitted that the injured and his assailant was in such a situation that he could not have seen the weapon in the hands of the respondent. In fact, the injured P.W. 1 could have never suspected that the respondent had fired at him. As regards the manner of occurrence, the same was stated by P.W. 1 and is corroborated by P.W. 2 and the evidence of Dr. S.K. Verma, P.W. 5, who had first attended upon the injuries of the injured, The blood stained clothes were produced by P.W. 4, Jag Sharan, father of the injured. It was contended that it was completely erroneous and perverse on the part of the learned trial Judge who had drawn adverse inference against the prosecution for non-examination of the doctor who had treated the injured in Medical College Hospital. Meerut, as also for non-production of the x-ray report as well as for non-examination of Kripal in front of whose house the occurrence had taken place, without there being any material that he had really seen the occurrence.

It was contended by the learned counsel appearing on behalf of the respondent that it was not mentioned in the F.I.R. that the firing was made by any gun, country made or regular, and subsequently the fact was introduced during evidence in the court by alleging that it was the respondent who had fired a shot. It was further contended that the evidence of P.W. 1 and that of P.W. 2 was contrary, as regards the situation of the injured who is the informant and the witnesses and that also creates a doubt in the prosecution case. It was contended that if there was doubt regarding the proof of the charge then the benefit of the same must accrue to the respondent and it appears that the view taken by the learned trial Judge was also a reasonable view which did not require any interference from this Court.

The law regarding the powers of an appellate court in an appeal against acquittal is now well settled. It is too well known to be pointed out that the appellate court has full power to review the evidence upon which the order of acquittal is founded and if it is shown from the evidence that the view taken by the trial court was so perverse that no reasonable person could reach those conclusions, then order of acquittal could be disturbed. Besides, if the view taken up by the trial court was also a probable view then in that case the appellate court must not interfere with the judgment of acquittal. The Supreme Court in Sanwat Singh and Others Vs. State of Rajasthan, , after referring to many decisions including that in AIR 1934 227a (Privy Council) , laid down that (i) "substantial and compelling reasons" (ii) "good and sufficient cogent reasons" and (iii) "strong reasons" are not intended to curtail the undoubted power of appellate court in appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every material on record having a bearing on the questions of fact and the reasons given by the court below in support of order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified. It is also pertinent to point out that the theory of innocence of an accused remains attached to him even in an appeal and gets strengthened further when he gets acquitted which must not be upset unless there were very good and compelling reasons. However, as was pointed out by Supreme Court in Sanwat Singh (supra), the appellate court has to reappraise the evidence only to judge the findings of the trial court which had seen the witnesses in the witness box and then had appreciated their evidence.

The first criticism of the Judgment of acquittal was that the learned trial Judge had raised many adverse presumptions to the prosecution and those could not have been legitimately raised. The learned trial Judge has mentioned that there was no satisfactory reason assigned by the prosecution as to why no mention of any fire arm was made in the F.I.R. On consideration of the finding which has been recorded by the learned trial Judge at pages 5 and 6 of the impugned judgment what this Court finds is that the learned trial Judge has ignored the evidence of the doctor, as regards the mental and physical health of the injured. P.W. 5, Dr. S.K. Verma has stated in his evidence, as may appear from his evidence at page 19 of the paper book, that the general condition of the patient was not good. He had a pulse rate of 94/ minute and it was feeble. Likewise, the blood pressure of P.W. 1 measured 90/60 and he was perspiring, but still was conscious and considering the condition of the injured, P.W. 5 referred him to the Medical College Hospital, Meerut. It appears that the shot which was fired at the injured, was from a very close range as it was dispersed in a very small area measuring 8 cm x 10 cm and it was definitely on a very vital part of the body of P.W. 1, i.e., on the 1/3 lower part of the back of the injured. P.W. 5 in his cross-examination stated that he was not sure whether the injuries had been caused by a single shot or two shots. But what this Court finds is that the injuries were of a single shot as the concentration of pellets was in an area of 8 cm. x 10 cm and a few of the pellets had dispersed to create two other wounds measuring 0.6 cm. x 0.6 cm each and the margins of all the wounds were irregular and inverted. The possibility that the shot was fired from a very close range and may not get dispelled from the absence of tattooing or blackening which was stated in the very third line of cross-examination of P.W. 5. This Court finds good reason for non-appearance of those signs of a shot fired from a very close range. P.W. 1 has stated in his evidence that he had put on a shirt and a tahmad. That shirt was seized by P.W. 6 on being produced by P.W. 4, father of the injured. It was a cotton cloth as appears from discussion of the same given by P.W. 1 as per description of Exhibit Ka-2, which was bearing many perforated marks which were also soaked in blood. As such whatever particles, like, the unburnt gun powder had ejected from the cartridge would have remained entangled with the cloth fibre and, as such, would not have penetrated into subcutaneous or other layers of the skin of the injured. It has been also stated by P.W. 1 in his written report as also in his evidence that as soon as he was hit by a shot he fell down on the ground and when the witnesses attempted to apprehend the respondent, he ran away towards the village. He was, thereafter, picked up by the villagers and brought to the hospital by a tractor trailer. These evidences clearly indicate that the injured could have been in a very disturbed state of mind and must have been frightened on account of the shot being fired by a fire arm and if he missed mentioning the weapon in his report, it was not a material omission or contradiction. In fact it had not been denied that the injured was moving ahead of the respondent who was moving just behind him. Therefore, it could not have been possible for P.W. 1 to have really seen the weapon or tell with certainty as to what was being carried by the respondent. Indeed, we find P.W. 1 moving ahead of the respondent unmindful of any likelihood of any untoward incident happening then. In our opinion, the learned Judge was reading too many things in not mentioning the weapon in the written report and appears not justified in drawing an adverse inference against the prosecution to raise doubt in its case.

The next factor which had influenced the learned trial Judge in acquitting the respondent was non-examination of Kripal, in front of whose house the occurrence had taken place. This Court is of the opinion, on mere reading of the findings, at page 8 of the impugned judgment that the learned trial Judge had completely ignored some of the realties which could have been found by him from the record itself and had illegally drawn adverse inference. No witness had stated that the owner of house, namely, Kripal was anywhere near the place of occurrence and had witnessed the occurrence while being committed. Not only that, the defence had also not suggested to anywitness that Kripal was present and had seen the occurrence so that it could have argued before the court below to draw an adverse inference on non-examination of a most material witness. Courts have been drawing adverse inference on non-examination of a witness only when he appears as material witness. If a witness is not material, i.e., if the examination of such a witness was not necessary for unfolding the prosecution narration, then there was no need for the prosecution to examine such a person. Moreover, the ordinary principle of appreciating the evidence by marshalling the facts in a criminal case appears ignored by the learned trial Judge that the witness was not named in the F.I.R. nor there was anything on record to indicate that he had seen the occurrence and further that he was not cited as a witness in the charge-sheet.

The learned trial Judge has gone on to hold that the Investigating Officer did not care to record the statement of Kripal, during the course of investigation of the case as was apparent to him from a bare perusal of the case diary. In the opinion of this Court, the court is of course entitled to look to the case diary at any stage of an enquiry or a trial or other proceedings, but that power is meant only to judge the veracity of a particular fact which has been introduced by the prosecution through any witness or which is required to be evaluated on account of the non-examination of any particular witness, like, the Investigating Officer. It is never meant to be used for drawing an inference which could not be legitimately drawn as we do on admissible evidence during the course of trial for acquitting the accused. The very inference raised by the learned trial Judge appears completely erroneous and perverse. In the opinion of this Court. Kripal was not a material witness and it was not at all necessary for the Investigating Officer as also for the prosecution to examine him at either of the two stages. The learned trial Judge appears completely going over board to record a completely perverse finding, which appears deeply influencing his mind to acquit the accused.

It appears from evidence of P.W. 1 which has got complete and full support from P.W. 2, that while he was moving on the road towards north and the respondent was following the injured. P.W. 2, namely. Lahri Singh and another. Soran Singh (not examined) were moving on the same road just behind the present respondent. P.W. 2 had stated in his evidence that he and Soran Singh were 10 steps behind P.W. 1 who was ahead of the respondent. Amit, by about 3 steps (P.W. 2 para 2) when the shot was fired. As soon as the shot was fired, the respondent started running away and he was chased by Soran Singh and P.W. 2 but the respondent made good his escape. P.W. 2 stated that he and Soran Singh had run only 2-3 steps, a very short distance, when they again came back near the injured Jitendra (P.W. 1) and that other persons had also arrived there and all of them picked up the injured who was lying on the brick laden road. A tractor was brought and the injured was put on the tractor-trolley and was taken to the hospital. P.W. 2 had stated in paragraph 9 that he had seen the respondent firing a shot at Jitendra. P.W. 1, and it was a country made weapon which was seen by him only on that day and he inferred only from the sound of the shot. The injuries have already been noted while discussing the evidence of P.W. 5, Dr. S.K. Verma and those lend support to the manner of occurrence, as regards use of the weapon. The prosecution story that P.W. 1 was fired in his back clearly indicates that the assailant was positioned somewhere in the back side of the injured and the three injuries which have been discussed by me in the early part of the judgment, clearly indicated the manner of occurrence and the use of weapon. Evidence regarding the weapon which had caused the injuries was sufficiently available on the record by virtue of examining P.W. 5, Dr. S.K. Verma and he was very clear in his opinion that the injuries were caused by gun shot. He had not probed the depth of the injuries, but the part of the body which was hit by the weapon clearly made out a case that the intention was there to kill the injured. In that view it was not at all necessary that the prosecution should have examined the doctor who had rendered the x-ray report. Even assuming for the sake of argument that the injuries were not grievous, which do not appear to be a case, the nature of the same was never material and the learned trial Judge was simply not justified in drawing an adverse inference on those reasons. The court is of the opinion that the very manner of occurrence, the weapon together with the site of the injuries were sufficient pointer to the fact that the respondent had the definite and requisite intention and he did the act of firing from a very close range in order to killing P.W. 1.

The learned trial Judge has granted the prosecution the point that light could have been sufficient as it was 7 p.m. on 27.6.2000 but had raised an inference that the witnesses, like, P.Ws. 1 and 2 had made false statement that they had also seen the assailant in the flash of the head light of Tata 407 vehicle. The learned trial Judge has probably missed to consider that even if the light was sufficient for rural people to see and identify one of their co-villagers, the driver of the vehicle who was driving through the village road, might, in abundant caution have put the light on so that there was no untoward incident. This does not appear unusual, if the additional light was there, it could not be said to be a deficiency in the prosecution case.

The trial court has held that motive for commission of the offence has not been established. No motive was stated in the written report; it was only during trial that P.W. 1 stated that he was asking the respondent to pay up the money he had borrowed from his Bahnoi (brother-in-law) and that had caused annoyance to the respondent and ultimately he committed the offence. It is true that the Bahnoi of the injured [P.W. 1) was not examined and there was no further details about the borrowing made by the respondent; and it was rightly held that the motive was not established, but the learned Judge missed the oft repeated principle of criminal jurisprudence that in a case of direct evidence, which appears otherwise reliable, non-pleading and proof of motive loses its importance.

After going through the evidence of the prosecution and considering the findings of the court below in light thereof, this Court is of the opinion that the learned trial Judge had rendered the findings which no reasonable person could reach on the evidence available. The findings are not only perverse but also appear completely against the weight of evidence and that renders the whole judgment perverse.

In the result, the judgment of acquittal dated 3.6.2003 passed by the learned Additional Sessions Judge. Ghaziabad in Sessions Trial No. 478 of 2001 is hereby set aside and the respondent is convicted of the offence u/s 307, I.P.C. As regards the sentence which this Court proposes to pass upon the respondent, we find that the occurrence had taken place in the year 2000 and the judgment of acquittal was passed in the year 2003. It had remained subsisting for more than nine years when this Court is passing the present judgment. The respondent had to contest the trial as also the present Government appeal during past 9 years and further the respondent was aged about 20 years on the date of occurrence. Considering these circumstances, we propose to take a lenient view and direct the respondent. Amit to undergo rigorous imprisonment for five years and to pay a fine of Rs. 10,000 which if realised shall be paid to the informant or any of his legal heirs as compensation, u/s 357, Cr. P.C. In case of non-payment of fine, the respondent shall have to suffer further period of rigorous imprisonment for one year. The Government appeal is allowed. The bond furnished by the respondent is hereby cancelled. The trial court is directed to take steps to take the respondent into custody so that he serves out the sentence. Let the lower court records with a copy of the present judgment be sent down immediately.