State of U.P. vs Dinesh Kumar and Others

S.C. Agarwal, J.—This Government appeal alongwith an application u/s 378(3) of the Code of Criminal Procedure for grant of leave to appeal has been filed on behalf of State of U.P. against the judgment and order dated 9.4.2004 passed by Addl. Sessions Judge/F.T.C. No. 3, Etah in S.T. No. 356 of 1999; State of U.P. v. Dinesh Kumar and others arising out of case crime No. 54A of 1996, u/s 307 /34, I.P.C., P.S. Naya Gaon, District-Etah, whereby the respondents Dinesh Kumar, Netrapal, Indrapal and Brajesh Kumar were acquitted for the charge u/s 307 read with Section 34, I.P.C. The incident took place on 28.7.1996 at 10 a.m. in Village-Bhadki, P.S. Naya Gaon, District-Etah. The F.I.R. was lodged on the same day at 12.30 p.m. by the complainant-Shyam Singh.

The prosecution case as contained in the F.I.R. was that on 28.7.1996 at 10 a.m., there was a quarrel and maar-peet between Shaitan Singh and Bachan Singh. Thereafter, there was cross firing between both the accused. Veerpal and Bachan Singh fired causing injuries to Smt. Mahesh Kumari, Akhilesh Kumari and Ramka Devi. Subsequently, another written application was given by the complainant stating therein that on 28.7.1996 at 10 a.m., his niece-Akhilesh Kumari, sister-in-law-Mahesh Kumari (P.W. 1) and Ramka Devi (P.W. 3) were sitting in front of their house. The accused Brajesh Kumar and Dinesh Kumar armed with their licenced guns, Indrapal armed with a licenced single barrel gun and Netrapal armed with a country made pistol fired causing injuries to the three ladies. Complainant was not present at the time of incident. When he returned home, the facts were disclosed to him by his niece-Satyabhama (P.W. 4). He started for the police station. On the way, near bus stand-Saraya, three injured, who were being taken to the hospital, met the complainant, who also went to the hospital and took them to Etah. Thereafter, the first informant came to know that somebody had lodged the F.I.R. on his behalf against wrong accused.

Three injured were medically examined. Investigation was commenced by S.I. Tilak Chandra (P.W. 7). The investigation was transferred to Sri Angad Ram Sharma (P.W. 8) and subsequently to S.I. Kailash Chandra Gautam (P.W. 9). After completion of investigation, charge-sheet was submitted against the accused-Dinesh Kumar, Netrapal and Indrapal (respondent Nos. 1, 2 and 3). Respondent No. 4-Brajesh Kumar was summoned during trial u/s 319, Cr. P.C.

Charge u/s 307, I.P.C. read with Section 34, I.P.C. was framed against all the respondents, who pleaded not guilty and claimed to be tried.

The prosecution examined as many as 10 witnesses in support of its case, Shyam Singh (P.W. 2) is the complainant but he is not an eyewitness. Mahesh Kumari (P.W. 1) and Ramka Devi (P.W. 3) are the injured witnesses whereas Satyabhama (P.W. 4) is also an eye-witness. Dr. Surendra Patwar (P.W. 5) had medically examined all the three injured. Dr. O.P. Varshney (P.W. 6) is the Radiologist. S.I. Tilak Chandra (P.W. 7) and S.I. Angadram Sharma (P.W. 8), Kailash Chandra Gautam (P.W. 9) are the Investigating Officers. Constable Ram Singh (P.W. 10) had recorded the earlier F.I.R. dated 28.7.1996.

The trial court examined the respondents u/s 313, Cr. P.C. They stated that initially, the F.I.R. was lodged against Veerpal and Shyam Singh (non-respondents) but, subsequently, the complainant entered into a compromise with Veerpal and Shyam Singh and due to enmity of Election of Village-Pradhan, second F.I.R. was lodged against the respondents. One Braj Mohan was examined as D.W.-1 as a defence witness.

Learned trial court found that the prosecution case is doubtful on the basis of earlier F.I.R. and acquitted the respondents. Hence this appeal.

We have heard learned A.G.A. for the State and perused the trial court records carefully.

It was contended on behalf of the State that learned trial court has committed illegality in disbelieving the statements of injured witnesses on the ground of delay in F.I.R. and on the basis of earlier report, which was not actually lodged by Shyam Singh (P.W. 2). It was contended that trial court has given unnecessary importance to minor contradictions in the testimony of witnesses and judgment of acquittal passed by trial court is perverse and is liable to be set aside.

We have gone through the trial court''s record and have come to the conclusion that the appeal has no merit and is liable to be dismissed at the admission stage.

The incident took place on 28.7.1996. The F.I.R. was lodged on the same day at 12.30 p.m. against two others, namely, Veerpal and Bachan Singh (non-respondents). After more than one month, on 2.9.1996, the complainant-Shyam Singh (P.W. 2) gave another written report naming the respondents as the accused and claimed that earlier F.I.R. was not lodged by him and he was not present at the time of incident. The G.D. of the police station dated 28.7.1996, time 12.30 p.m. shows that the first informant Shyam Singh accompanied by the injured persons came to the police station and lodged F.I.R. Braj Mohan (D.W. 1) stated that there was cross firing in the village at about 10 a.m. He reached the spot after hearing sound of firing and come to the house of Shyam Singh. Shyam Singh told him that Veerpal and Bachan Singh had caused fired arm injuries to his sister-in-law and niece. On the dictation of Shyam Singh, one Bablu scribed the F.I.R. (Exbt. Kha-1). It was incumbent on the prosecution to examine the scribe of the F.I.R. in prosecution evidence and he was deliberately withheld by the prosecution. When there is a dispute as to whether the F.I.R. (Exbt. Kha-1) was scribed on the dictation of complainant or not, mere denial of the complainant is not sufficient. Bachan Singh-scribe of the F.I.R. has been deliberately withheld by the prosecution. G.D. entry by which, the case was registered, has been proved by P.W. 10. The G.D. entry discloses the presence of the first informant at the time of recording of the F.I.R. alongwith the injured persons. However, if the F.I.R. was not lodged by Shyam Singh but by some other person, the injured witnesses could have protested before the police and must have stated that person who lodged the F.I.R. was not Shyam Singh but nothing such happened and the injured witnesses kept mum at the time of lodging of the F.I.R. This fact clearly shows that earlier F.I.R. was, in fact, lodged by Shyam Singh (P.W. 2) and after about five weeks, he had a change of heart and gave a second written report, contrary to the facts mentioned in the earlier F.I.R. In our considered opinion, the assertion of the complainant that earlier F.I.R. was not lodged by him cannot be believed. This plea coming after about five weeks from the incident is simply an afterthought. We are satisfied that the finding of the trial court in this respect is fully justified and does not call for any interference by this Court.

It is true that the injured witnesses P.W. 1 and P.W. 3 suffered fire arm injuries and the other witness Satyabhama also belongs to the same family but this Court cannot ignore the fact that new version came to light after five weeks from the incident and this delay itself is sufficient to discard the prosecution case. The fact that P.W. 1 and P.W. 3 are injured witnesses only establishes their presence at the time of incident but does not ensure their truthfulness. We find sufficient force in the submissions advanced by learned counsel for the defence before the trial court that the first informant entered into a compromise with the persons named in the earlier F.I.R. and subsequently, due to enmity, a second F.I.R. was given to the police naming the respondents.

According to Mahesh Kumari (P.W. 1), she had seen the accused persons going up the stair case but at that time, they were not armed with any weapon and firing was made from a window on the second storey. The weapons were only 2 or 3 inches beyond the window. Ramka Devi (P.W. 3) also stated that from the place where the injured were standing, inside of the room from where firing was made, was not visible and only weapons were visible. In these circumstances, the trial court rightly came to the conclusion that it was not established that the injuries to the three injured witnesses caused by the respondents.

We have carefully gone through the statements of witnesses examined during trial and we are of the opinion that the view taken by the trial court cannot be said to be unreasonable or perverse. When two views are possible, it is not permissible for the High Court to interfere unless the view taken by the trial court is perverse and against the weight of evidence available on record.

We do not find any error or perversity in the judgment of the trial court. The appeal has no merit. The application for leave to appeal is rejected. The Government appeal is dismissed. Office is directed to transmit the lower court''s record alongwith a copy of this judgment to the trial court within a week.