State of U.P. vs Beni Din and Others

M.C. Jain, J.—This appeal has been preferred by the State against the order of acquittal passed by Sri V. K. Sirkar, the then Vth Additional Sessions Judge, Allahabad on 29.11.1980 in respect of seven Respondents in S.T. No. 200 of 1978. Five of them faced trial for rioting u/s 147, I.P.C. while the remaining two were charged u/s 148, I.P.C. All of them were further charged under Sections 307, 324 and 323, I.P.C. each read with Section 149, I.P.C.

The genesis of the prosecution case was the F.I.R. lodged at the concerned police station by Pitambar Lal P.W. 1 on 4.10.1976 at 00.10 a.m. The incident had taken place the same night at 9.30 p.m. in front of Raghu Nath''s house in village Malak Chaudhari, Police Station Soraon, district Allahabad, the distance of which from the police station was about four miles.

The relevant facts may be stated shortly. Pitambar Lal P.W. 1 was the Village Pradhan of village for last more than 20 years and each time he was elected without contest. The accused-Respondents Beni Din, Hanuman Dayal, Mahadeo, Suraj Prasad, Chitrakoot, Hari Ram and Lok Nath were also residents of the same village. About 5-6 months before the incident, the accused-Respondents Beni Prasad and others had mooted no-confidence motion against Pitambar Lal P.W. 1, but the same was rejected on 15.6.1976 on voting. Hanuman Dayal had encroached upon the land belonging to the Gaon Sabha and as Pradhan Pitambar Lal P.W. 1 had started proceedings against him. Hanuman Dayal was evicted from the said land. For these reasons, the accused-Respondents were inimically disposed against Pitambar Lal P.W. 1. Lok Nath and Chitrakoot are the sons of Hanuman Dayal ; Suraj Prasad and Mahadeo are real brothers ; Beni Din and Hari Ram are cousins and all were on friendly terms with each other. As per the prosecution case, on the date and time of the incident, Pitambar Lal P.W. 1, Bhunnan Lal, Keshav Prasad, Jagannath (injured) P.W. 2, Someshwar, Ram Kripal (injured), Chhotey Lal (injured) etc. were sitting,, at the door of Raghu Nath and they were conversing. A lighted petromax was kept nearby. All the accused-Respondents reached there in a group. Lok Nath was armed with a gun ; Beni Din had a country-made pistol ; Hanuman Dayal had a spear ; Suraj Prasad and Chitrakoot had lathis ; Mahadeo and Hari Prasad had pharsas. With the hurling of abuses, they launched the attack. Ambika Prasad and Chhotey Lal received gun shot injuries ; Jagannath P.W. 2 received an incised wound ; Ram Kirpal and Bhullan Devi P.W. 3 received injuries of blunt object. Pitambar Lal P.W. 1 and others who were present at the door of Raghunath challenged and chased the accused-Respondents. Near the house of Pitambar Lal P.W. 1, Bhullan Devi P.W. 3 assaulted the accused-Respondent Lok Nath and was successful in snatching his gun. Thereupon Suraj Prasad accused-Respondent assaulted her with lathi. The accused-Respondents managed to escape. Thereafter, transport was arranged and all the injured were taken to the Police Station Soraon where the F.I.R. was lodged by Pitambar Lal P.W. 1 and the gun which had been snatched from Lok Nath by Bullan Devi P.W. 3 was also deposited. All the injured were interrogated and sent for medical examination.

At the trial, prosecution examined Pitambar Lal P.W. 1, Jagannath (injured) P.W. 2, Bhullan Devi (injured) P.W. 3 and Bhunnan Lal alias Ambika Prasad P.W. 4 as eye-witnesses. Dr. P. L. Nigam P.W. 5 and R. P. Agnihotri Investigating Officer P.W. 6 were formal witnesses.

The defence was of false implication on account of previous enmity. The accused-Respondents also examined Dr. P. L. Nigam as D.W. 1 for proving the injuries of Lok Nath.

We have heard Sri S. K. Pal learned A.G.A. from the side of the State in support of the appeal and Sri Satyendra Singh, advocate from the side of Respondents in opposition thereof. Learned A.G.A. has lambasted the finding of acquittal recorded by the trial court. It is submitted that as many as five persons sustained injuries in the incident, out of whom two, namely, Ambika Prasad P.W. 4 and Chhotey Lal had sustained gun-shot injuries. Pitambar Lal P.W. 1 informant, Jagannath (injured) P.W. 2, Bhullan Devi P.W. 3 and Ambika Prasad P.W. 4, according to learned A.G.A. had supported the prosecution case in material particulars as eye-witnesses which found support from medical evidence too and as such the finding of acquittal was not at all justified.

On carefully examining the evidence on record, we form the opinion that the prosecution case as presented before the Court suffered from serious infirmities and the guilt could not be fastened on the heads of the accused-Respondents. Though it was reasonably probable that those injured on the prosecution side and accused-Respondent Lok Nath sustained injuries on the fateful date and time in the same incident, but the prosecution evidence was not clinching to prove the accused-Respondents to be the aggressors and the culprits. We should state the reasons shortly. Pitambar Lal P.W. 1 was, as per the prosecution case, root cause of the incident as he was continuously being elected as Pradhan for last about 20 years and the accused-Respondents were allegedly annoyed on this score who belonged to the faction opposed to him. However, Pitambar Lal P.W. 1 himself did not sustain any injury in the incident. Had he been present at the spot, in all probabilities, he would have been the target of the fury of the accused-Respondents and would not have been spared unharmed. Strangely enough, his version is that the incident prolonged for about 45 minutes to one hour, but none of the accused-Respondents made any attempt to assault him. The spot was allegedly inspected by the Investigating Officer in the night of 4.10.1976 itself between 2.30 and 3.00 a.m., but the statement of Pitambar Lal P.W. 1 is to the effect that he had returned to his house after lodging the F.I.R. in the morning and the Investigating Officer had visited the spot after he reached back home. It is an indicator as if he has spoken on the basis of his imagination, though he was not at all present at the spot. Thus, the incident related in the F.I.R. itself is shaken which is the foundation of prosecution case.

Further, there is discrepancy in the weapons assigned by him to the accused-Respondents in the F.I.R. and as stated in his testimony before the Court. He also stated that Hanuman Dayal Respondent used spear in a piercing way. Jagannath P.W. 2 also stated that Hanuman Dayal had pierced the spear into his abdomen. However, no punctured wound was sustained by any of the injured. Jagannath P.W. 2 sustained only an incised wound on his abdomen which was not of the nature of stab wound. Thus, the role assigned to Hanuman Dayal was not trustworthy.

The source of light at the spot was also doubtful. The prosecution case was that a lighted petromax was there at the scene of the incident. This artificial light only was allegedly illuminating the scene of the incident because the statement of Pitambar Lal P.W. 1 is also to the effect that it was a moonlit night but the light of the moon was not reaching at the place where he and others were sitting. However, recovery memo of the lantern was prepared as late as on 21.10.1976, though the spot inspection was made by the Investigating Officer on 4.10.1976.

Bhunnan Lal alias Ambika Prasad P.W. 4 was also inimically disposed against some of the accused-Respondents as he admitted that his father Amar Nath and brother Dev Narain were co-accused in a criminal case started by Mahadeo and in the cross case of the same, Suraj Prasad and Mahadeo were arrayed as accused. He also stated that after the aforesaid criminal case, accused Beni Din''s father Babu Lal had appeared as a witness against members of his side. Obviously, he was not an impartial witness. Raghunath at whose house the persons of prosecution side were allegedly sitting and holding conversation was not at all examined. The sad feature of the case was that no other independent witness of the village was examined.

Lok Nath accused-Respondent sustained three injuries, i.e., lacerated wound on the scalp, a contusion on the right forearm posterio lateral aspect and an abraded contusion on posterio lateral aspect of the right thigh. Bhullan Devi P.W. 3 attempted to explain his first injury, but there was no explanation whatsoever for the remaining two injuries sustained by him. Bhullan Devi P.W. 3, too, admitted that a litigation in the consolidation court had taken place between Babu Ram the father of the accused-Respondent Beni Din and Hari Ram and Ram Autar with her husband. She also admitted that her husband Chhotey Lal, Pitambar Lal, Sahdeo, Ram Kripal, Kallu and Someshwar belonged to same party.

To sum up the above discussion, only the witnesses of one faction opposed to the accused-Respondents were examined. The happening was not truthfully disclosed in the F.I.R. as also in the testimony of the interested witnesses. It was apparent that the reality was twisted beyond recognition. The truth was so inextricably mixed with falsehood that it was not possible to separate the same. The possibility could not be ruled out that some of the innocent persons were implicated due to previous enmity. No independent witness was there to support the prosecution case, as presented. The availability of light at the spot was also doubtful. Two injuries of injured accused-Respondent Lok Nath also went unexplained. In the face of such fluid state, the guilt could not be held to be brought home to any of the accused-Respondents and the trial court was perfectly justified in affording, all of them the benefit of doubt having regard to the apparent weaknesses in the prosecution evidence considered in the light of the attending circumstances. We see no merit in this appeal and it is liable to be dismissed.

We dismiss the appeal.