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State of Uttar Pradesh v/s Dharamvir & Others

    Government Appeal No. 2011 of 1984

    Decided On, 03 March 2014

    At, High Court of Judicature at Allahabad


    For the Appellant: ----------. For the Respondents: V.K. Jaiswal, S.A. Gilani, D.N. Wali, Advocates.

Judgment Text

Anant Kumar, J.

1. This Government appeal u/s 378 Cr.P.C. has been filed on behalf of the State of U.P. against the judgment and order dated 27.3.1984 passed by Sri P.K. Jain, 1st Additional Sessions Judge, Ghaziabad in Sessions Trial No. 277 of 1982 whereby the accused persons in the said case have been acquitted. The F.I.R. in the matter was lodged by one Dharamvir son of Harvansh Singh Tyagi, wherein it was mentioned that on the last Tuesday at about 7.00 P.M. when daughter of his brother Savita had gone to case herself, one Devendra Tyagi of the village had molested her and due to this, there were heated arguments between the family of the complainant and Devendra. Since the matter was pertaining to the girl in the family, it was subsided itself. On 9.4.1982 at about 2.30 P.M. the brother of the complainant had gone to the shop of Jeevan Pandit for purchase of Biris. When he was returning, Bateshwar met him near his house and said to Ram Nath that day before yesterday they had abused him and saying this, Bateshwar gave a lathi blow upon him and Ram Nath ran away to rescue himself. In the meantime, with a common intention Dharmvir having gun, Satya Prakash, Devendra, Pramod, Jagvir having Katta and Rajvir having licensed gun came there giving filthy abuses and Dharmvir Singh opened fire from his gun upon Mahavir Singh, due to which he died instantaneously. Hearing the sound of fire, Satyavir, Bandhan Singh, Om Prakash, Onkar Singh, Ram Swaroop and Subhash came on the spot. The F.I.R. of the incident was lodged at Police Station Hapur, District Ghaziabad on the same day i.e. 9.4.1982 at 15.35 P.M.

2. Injured Dharmvir, Ram Nath and Km. Chanchal were sent for medical examination and their medical examination was done by Dr. V.P. Agarwal, who found following injuries on the injured persons:--

Injuries of injured Dharamvir:--

1. Gun shot wound 1/4 c.m. x 1/4 c.m. scalp deep on the front and left side head, 6 c.m. above the outer 1/3 of left eye brow with swelling of 4 c.m. x 3 c.m. all around, margins inverted and blackened.

2. Gun shot wound 1/2 c.m. x 1/4 c.m. into muscle deep on left side 2 c.m. below the middle of left lower eye lid, margins inverted and blackened.

3. Two lacerated wound 3/4 c.m. x 1/2 c.m. and 1/2 c.m. into 1/2 cm, 2 c.m. apart from each other and through and through" the skin close to the left angle of mandible.

4. Gun shot wound 1/2 c.m. x 1/2 c.m. into muscle deep left side of neck, 5 c.m. below the left ear, margins inverted blackening present.

5. Gun shot wound 1/2 c.m. x 1/2 c.m. into muscle deep on the left side chest 11 c.m. below the left angle at 6 O'clock position, margins inverted and blackened.

Injuries of Ram Nath:

1. Contusion 6 c.m. x 3 on right angle of mandible.

2. Contusion 8 c.m. x 2 c.m. on the back and on the left elbow joint.

3. Contusion 9 c.m. x 2 c.m. on left side chest 10 c.m. below the left post axillary fold. The injuries were simple caused by blunt object and were fresh at the time of medical examination.

Injuries of Km. Chanchal:-

1. Gun shot wound 1/3 c.m. x 1/3 c.m. into muscle deep on front and upper part of knee joint inner aspect margins inverted, blackened surrounding with swelling 3 c.m. x 3 c.m. The injury was kept under observation. X-ray was advised and the injury was fresh.

3. On the dead body of the deceased Mahavir Singh autopsy was done by Dr. K.K. Karoli and following ante-mortem injuries were found:--

1. Two firearm injuries circular left side of chest 1" above left nipple in 1 O' clock position each 1/4" x 1/4", blackening and tattooing was present.

2. 1 gun shot injury 1/4" x 1/4" circular on lower part of left forearm, blackening and tattooing present. The injury was 2" below elbow joint.

3. 1 gun shot wound 1" x 1/4" circular on right circular in upper middle part blackening and tattooing present.

4. One gun shot wound on the upper part of forearm, tattooing and blackening present 1/4" x 1/4" into circular.

5. A circular gun shot wound 1/4" x 1/4" on blackening of hand in middle part tattooing and blackening present.

6. One gun shot wound 1/3" x 1/3" on back and lower part of forearm.

7. 2 gun shot wound circular on back of left ring and middle finger 1/4" x 1/4", tattooing and blackening present.

8. 1 gun shot wound on left forearm upper part 1/4" x 1/4", tattooing blackening present.

9. 1 gun shot wound on right leg middle part 1/4" x 1/4", tattooing and blackening present, wound is circular.

10. Two gun shot injuries on right leg lower part back side each 1/4" x 1/4", tattooing and blackening present.

11. Two gun shot injuries on left thigh of lower and upper part, blackening and tattooing present, each circular and 1/4" x 1/4".

12. 1 gun shot injury on left leg upper part 1/4" x 1/4", tattooing and blackening present.

13. Two gun shot injuries with tattooing and blackening present each 1/4" x 1/4" on left leg.

14. Two gun shot injuries circular each 1/4" x 1/4" blackening and tattooing present on testicles.

15. Two gun shot injuries on left thigh circular each 1/4'' x 1/4" tattooing and blackening present.

16. Two gun shot injuries each 1/4" x 1/4" with tattooing and blackening on the back of right side.

In the opinion of the doctor, the death was caused due to shock and hemorrhage as a result of ante-mortem injuries.

4. The accused persons Dharamvir, Satya Prakash, Devendra, Pramod, Jagvir and Rajvir were charged under sections 148, 302/149 and 307/149 I.P.C. whereas the accused Dharamvir was further charged u/s 302 I.P.C. and accused Bateshwar was charged u/s 323 I.P.C.

5. On behalf of prosecution, as many as nine witnesses were examined wherein P.W.-1 Dharamvir Singh, P.W.-3 Km. Chanchal, P.W.-4 Ram Nath and P.W.-8 Savita are the witnesses of fact whereas P.W.-2 Dr. V.P. Agarwal, P.W.-5 Raj Kumar, P.W.-6 Dr. K.K. Karoli, P.W.-7 Anokhey Lal and P.W.-9 S.I. Sita Ram were examined as formal witnesses.

6. After hearing the prosecution and defence, learned Trial Court has acquitted the accused persons from the respective charges as stated above, hence this appeal has been filed against all the seven accused persons. During trial, the accused Dharamvir, Jagvir and Bateshwar have died so this appeal is being heard only in respect of remaining accused persons.

7. We have heard Sri R.Y. Pandey, learned A.G.A. for the State-appellant and Sri G.S. Chaturvedi, learned Senior Counsel, assisted by Sri V.K. Jaiswal, learned Counsel for the accused-respondents.

8. Learned A.G.A. on behalf of the State has vehemently argued that the learned Trial Court has committed an error while scrutinizing the evidence and in spite of the fact that there was an eye witness account, the accused persons have been acquitted. The witnesses are injured also so the presence of the injured witnesses on the spot cannot be disbelieved, as such, the learned Trial Court has committed a manifest error in disbelieving the statements of the injured witnesses. It is also argued that as per the prosecution version, all the accused persons had used their respective weapons and the deceased Mahavir Singh had sustained as many as 16 different gun shot injuries, which goes to show that all the accused persons having firearms had opened indiscriminate firing upon the deceased who had sustained firearm injuries on various parts of his body. It is also stated that firings were made from very close range which is evident by tattooing and blackening present on the injuries. It is further argued that the learned Trial Court while assessing the evidence Las mainly held that there was family dispute between the parties and place of occurrence was also not proved and in the facts and circumstances, the accused persons ought to have been convicted by believing the witnesses.

9. Learned Counsel for the defence has stated that the prosecution has totally failed to prove the mode and manner of the occurrence, the ocular version as well as contents of the F.I.R. and medical report do not support to each other. It is also stated that the persons named in the F.I.R. as witnesses of occurrence have not been examined on behalf of prosecution. As per version of the F.I.R., witnesses Satyavir, Bandhan Singh, Om Prakash, Onkar Singh, Ram Swaroop and Subhash are named as witnesses in the F.I.R. but these witnesses have not been examined whereas the other witnesses Dharamvir, Km. Chanchal, Ram Nath and Savita who were not named in the F.I.R. and who are family members, have been examined which goes to show that the occurrence had not taken place in the mode and manner as stated in the F.I.R. that is why the witnesses named in the F.I.R. have not supported the prosecution version and not came forward in support of the prosecution case. It is also stated that as per the version of the F.I.R., Dharamvir Singh had opened fire upon the deceased Mahavir Singh due to which he had died instantaneously. In the F.I.R. it is not mentioned that fire of other persons had also hit the deceased but the post-mortem report of the deceased clearly shows that he was having so many firearm injuries as against the version of the F.I.R. It is also stated that the injured witnesses Dharamvir, Ram Nath and Km. Chanchal were not having any such grievous injuries and the injuries shown in the injury report are simple in nature which can be self inflicted just for the purpose of case.

10. From the scrutiny of the entire evidence produced on behalf of the prosecution and perusal of the judgment of the Trial Court, it is evident that the learned Trial Court has very minutely scrutinized the evidence on record and after scrutinizing the evidence has categorically held that it is noteworthy that the prosecution witnesses have made important and material improvement in their original prosecution case which amounts to embellishment and can not be accepted. It is noteworthy that originally, the prosecution case as contained in the F.I.R. was that on hearing cries of Ram Nath, the witness Dharamvir Singh ran to rescue him. This story was corroborated by P.W.-1 in his statement u/s 161 Cr.P.C. However, in the Court, this improvement made is that Ram Nath came running on the platform and told that he was assaulted by accused Bateshwar. Another improvement made by prosecution witness is that the dead body of the deceased Mahavir Singh was shifted to the hall from the place of the incident. As already pointed out earlier, this fact is not mentioned either in the F.I.R. (Ext. Ka-1) or in the statement given to the Investigating Officer. Likewise, other improvement made by prosecution witness had been taken note by the Trial Court. The Trial Court has further taken into account that the medical evidence in the present case is also not inconformity with the ocular version. According to the prosecution witness, only one shot was fired at Mahavir Singh by accused Dharamvir Singh. It is specific case of the prosecution witnesses that on receipt of one gun shot injury, Mahavir Singh had fallen down and had died on the spot. The testimony of P.W.-6 Dr. K.K. Karoli coupled with the postmortem examination report shows that on the person of the deceased, there were as many as 16 gun shot injuries covering almost his entire body. One of the injury i.e. injury No. 16 was on the back of right side. All these injuries could not have been caused by one shot.

11. In the F.I.R. it is nowhere mentioned that in the incident, other persons i.e. Dharamvir, Ram Nath and Km. Chanchal had also sustained injuries, so it is yet another factor to be considered by the Court that as to when these persons had sustained injuries why this fact was not mentioned in the F.I.R., so this creates doubt upon entire prosecution version.

12. P.W.-3 Km. Chanchal in her statement narrated the incident saying that she along with her uncle Dharamvir had sustained gun shot injuries whereas in the cross-examination, she stated that she could not know at the first instance that she has sustained pellet injury, it was only when she came in the hall then she gathered that she had sustained pellet injury which she disclosed to her mother then. It is very strange that immediately after sustaining the pellet injury this witness could not ascertain that she had sustained pellet injury and later on she gathered this fact and disclosed to her mother. Since the other witnesses of fact produced on behalf of the prosecution are not named in the F.I.R. and no cogent reason for the same has been put forth by prosecution, to our view, the learned Trial Court has rightly disbelieved their evidence.

13. Learned Counsel for the accused-respondents have vehemently argued that it is not disputed that u/s 378 Cr.P.C., the Appellate Court i.e. High Court and every power of the Trial Court, the High Court can very well re-appraise the evidence and come to on own its independent conclusion but unless the order of the Trial Court is found perverse or against the settled principles of law, it should not be easily disturbed merely because two views are possible on one set of facts.

14. In this regard, on behalf of accused-respondents, reliance has been placed on a decision of the Hon'ble Apex Court in the case of Chandrappa and Others Vs. State of Karnataka, , wherein while interpreting the powers given u/s 378 Cr.P.C. the Hon'ble Supreme Court has held that where two views are possible on evidence on record, one taken by Trial Court in favour of accused should not be disturbed by Appellate Court.

15. In this case, the learned Trial Court had found that the prosecution had failed to examine certain persons who could have unfolded the genesis of the prosecution case. On this set of circumstances, the Trial Court has disbelieved the evidence of the prosecution. In this set of circumstances, the Hon'ble Supreme Court has further held that an Appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of innocence is further reinforced, reaffirmed and strengthened by the Trial Court.

16. Similar view has been taken by Hon'ble Supreme

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Court in the case of State of U.P. Vs. Nandu Vishwakarma and Others, . 17. In another case Gopal Singh and Others Vs. State of M.P., , the Hon'ble Supreme Court has further held that High Court's power while converting an acquittal into conviction is no longer a matter of speculation and debate. It is now well settled that if the Trial Court's judgment is well based on evidence and conclusion drawn in favour of the accused was possible thereon, the High Court would not be justified in interfering on the premise that a different view could also be taken and though the High Court is entitled to reappraise evidence, there should be substantial and compelling reasons for setting aside an acquittal order and making it one of conviction. 18. Similar view has been taken by Hon'ble Supreme Court in the cases of A. Shankar Vs. State of Karnataka, , and Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, . 19. So, from the perusal of the entire material on record, it is evident that the learned Trial Court has appraised the evidence in detail and acquittal recorded by the Trial Court is very well founded and well thought. Learned A.G.A. has failed to show any such perversity or non-application of mind on behalf of the Trial Court which may compel this Court to exercise its power u/s 378 Cr.P.C. and to reverse the order of acquittal. In view of the facts and circumstances of the case, in our view, this appeal has got no force and is liable to be dismissed. Accordingly, the judgment and order of the learned Trial Court is affirmed and the appeal is dismissed.