State of U.P. vs Nanhku and Others

M. Chaudhary, J.—This is a Government appeal from judgment and order dated 31st of March, 1981, passed by Vth Additional Sessions Judge, Azamgarh in Sessions Trial No. 71 of 1978, State v. Nanhku and Ors., acquitting the accused of the charge levelled against them u/s 307, I.P.C. read with Section 34, I.P.C.

Since accused-Respondent Nanhku was reported having died the appeal filed against him stood abated vide order dated 27th of May, 2005.

Brief facts giving rise to this appeal are that at about 7.30 a.m. on 14th of August, 1977, Mahangu lodged an F.I.R. at police station Gambheerpur situate at a distance of four miles from village Timri Sagram alleging that during the night between 13th and 14th of August, 1977, he was sleeping in the chhappar (Osara) in front of his baithak that at about 12.30 midnight Nanhku and Dev Nath armed with ballams alongwith Sochan and Kalp Nath with lathis reached there and surrounded his cot and Nanhku and Dev Nath gave ballam blows to him hitting him at his chest, arm and other parts of his body; that then he got up and caught hold of Sochan and that then the Appellants gave blows to him with their respective weapons. In the meanwhile on hearing the hue and cry raised by him female inmates of his house and co-villagers namely Ramadhar, Benchai, Bal Raj and Jai Nath flashing their torches rushed to the scene of occurrence and witnessed the incident, and sighting the witnesses all the miscreants took to their heels. The police registered a crime on the basis of the written report handed over by Mahangu at the police station and made entry regarding thereto in the G.D. Injured Mahangu was got medically examined by Dr V.K. Garg, Medical Officer in-charge, P.H.C. Mohammadpur on 14th of August, 1977 at 10.20 a.m. Medical examination of Mahangu revealed below noted injuries on his person :

(1) Penetrating wound 4 cm. x 1 cm. x 6.5 cm. on right side chest 4.5 cm. inward and below to the right nipple and 4.5 cm. above and out from epigastrium. Ends both sharp. Direction horizontally outwards and backwards.

(2) Penetrating wound oval 4 cm. x l-1/2 cm. x 6 cm. upwards backwards towards midline on outer side upper part of left upper arm 6 cm. below left shoulder joint. Ends and margins sharp.

(3) Penetrating wound 2 cm. x 0. 7 cm. x 3.5 cm. upwards and forwards ends. Margins sharp on back of upper part of left upper arm 7 cm. below and behind the injury No. 2.

(4) Penetrating wound 1.8 cm. x 0.6 cm. x 2 cm. upward and inward on back and outer side of lower third of left forearm 4 cm. above the left wrist joint. Ends and margins sharp.

(5) Incised wound 2 cm. x 0.3 cm. x muscle deep on foreside at back of left thumb.

(6) Incised wound 1 cm. x 0.3 cm. x muscle deep on front side middle of left index finger terminal digit.

(7) Abraded contusion 2.5 cm. x 2 cm. below on top of right shoulder joint, red colour.

The doctor opined that injuries No. 1 to 4 were caused by sharp pointed object, 5 and 6 by some sharp object and injury No. 7 by blunt object and all the injuries about 1/2 day old in duration. Injury Nos. 1 and 2 were kept under observation and the doctor advised x-ray of chest and left shoulder joint.

After completing investigation the police submitted charge-sheet against the accused.

The prosecution examined Mahangu (P.W. 1), Benchai (P.W. 2) and Bal Raj (P.W. 3) as eye-witnesses of the occurrence. P.W. 4 Dr V. K. Garg who medically examined injured Mahangu proved the injury report. P.W. 5 Dr. D. P. Khatri in whose supervision chest and left shoulder were X-rayed proved the X-ray plates and X-ray report (Ext Ka-4). P.W. 6 S.I. Jai Murti Pandey who investigated the crime proved the police papers.

The accused pleaded not guilty denying the alleged occurrence altogether and stating that they were implicated in the case falsely on account of enmity.

The accused examined D.W. 1 Jagat Singh and D.W. 2 Ramadhar in their support. D.W. 1 Jagat Singh is the Handwriting Expert. The accused examined him in order to show that P.W. 3 Bal Raj was a marginal witness of the sale deed dated 20th of September, 1965, allegedly executed by Khuddi in favour of Jai Nath. Testimony of D.W. 2 Ramadhar does not appear to be of any use as he has prepared a sketch map showing distance between the house of Bal Raj and the baithak of Mahangu therein.

An appraisal of the parties evidence on record, the learned trial Judge disbelieving the testimony of the eye-witnesses acquitted the accused holding them not guilty of the charge levelled against them.

Feeling dissatisfied with the impugned judgment the State preferred this appeal assailing the judgment of the trial court.

We have heard learned A.G.A. for the State Appellant and Sri K. P. Pathak, learned Counsel for the accused-Respondents.

It is well-settled that appellate court entertaining an appeal from the judgment of acquittal by the trial court though entitled to reappreciate the evidence and come to an independent conclusion; but in doing so the appellate court should consider every matter on record and reasons given by the trial court in support of the order of acquittal and then should interfere only on being satisfied that the view taken by the trial Judge is perverse or unreasonable resulting in miscarriage of justice. If two views are possible on a set of evidence then the appellate court need not substitute its own view in preference to the view of the trial court which has recorded acquittal. And while reversing an order of acquittal the appellate court must give specific grounds for holding that the appreciation of evidence by the trial court was erroneous and unsupportable.

After going through the impugned judgment and record of the case we are of the view that the learned trial Judge has given convincing and cogent reasons for recording acquittal of the accused. There is no mention of any light inside the chhappar (osara) or that of flashing any torch by the injured himself or anyone at the time of occurrence in the F.I.R. Admittedly it was a dark night. P.W. 2 Benchai stated in his cross-examination that after the incident when they were going to the police station there was drizzling on the way. Thus, evidently the sky was not clear as it was cloudy. A perusal of the site plan map goes to show that the Investigating Officer has not shown any light in the osara therein (Ext. Ka-7). Hence the learned trial Judge correctly observed that there was no light in which the assailants could be recognized.

It appears that P.W. 2 Benchai and P.W. 3 Bal Raj do not reside in close neighbourhood of injured Manhgu''s baithak. Had their houses been situate in the immediate vicinity of the baithak of injured Mahangu the Investigating Officer in all probability would have shown their houses in the site plan map as he showed the houses of Santu, Jokhan and that of Mahangu himself. A perusal of the injury report goes to show that the injured received four penetrating wounds, two incised wounds and one abrasion ; and according to the prosecution case there were four assailants two armed with ballams and two with lathis. Thus, the entire incident would have hardly taken 2-3 minutes. It is difficult to believe that in such a short time these witnesses who were residing at a considerable distance from the baithak of the injured would have awoken on hearing cries and reached at the scene of occurrence while the assailants were giving blows to Mahangu with their respective weapons. F.I.R. of the case is also much delayed as the incident took place at 12.30 midnight and injured Mahangu stated that he alongwith witnesses proceeded to the police station about half an hour after the incident but the F.I.R. of the incident was lodged at police station Gambheerpur at 7.30 a.m. the following morning whereas the police station is situate only at a distance of four miles from the village. Injured Mahangu got the F.I.R. scribed by one Dhirendra Chaturvedi. Injured Mahangu himself stated that Dhirenedra who scribed the report resided at Timri Mani Ram situate at a distance of some four hundred paces from his village. It is incomprehensible as to how Dhirendra who resided in another locality happened to be present there and accompany them in the night hours to the police station. In view of the unexplained delay in lodging F.I.R. of the occurrence at the police station and the above facts the probability cannot be ruled out that the injured could not recognize the assailants as they gave him blows with their weapons while he was asleep and the F.I.R. was lodged at the police station naming the assailants on suspicion after due consultation and confabulation. The assault was made at Mahangu while he was asleep is also evident from the fact that the Investigating Officer did not find any blood on the ground as he found blood stains only on the earthen pillar of the chhappar.

Further, if the F.I.R. is shaken then the very basis of the prosecution case stands knocked out. Because the F.I.R. loses all its corroborative value and authenticity as any number of witnesses could be added therein without there being to check the authenticity of their evidence.

P.W. 1 Mahangu, the injured stated in his cross-examination that after receiving ballam injury at his chest he caught hold of accused Sochan which appears somewhat improbable. If Mahangu received ballam injury at his chest it was not possible for him to catch hold of accused Sochan when the assailants armed with ballam and lathi were giving him blows with their respective weapons. Further in the F.I.R. Mahangu stated that all the four gave him blows with their respective weapons.

In view of above infirmities and incongruities in the prosecution case and evidence the learned trial Judge rightly observed that the evidence adduced by the prosecution could not be relied upon implicitly. And therefore findings recorded by the trial court cannot be said to be perverse or erroneous so as to call for an interference therewith. The appeal has no merit and is liable to be dismissed.

The appeal is dismissed. The accused-Respondents are on bail. Their bail bonds are hereby discharged.

Let copy of the judgment be certified to the court below.