IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s Order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 1167 of 2001 (Old No. 2186 of 1989) Date of decision :-29.03.2007 A.F.R. (Approved for Reporting) Not approved for reporting Date :-29.03.2007 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. - 1 - HIGH COURT OF UTTARAKHAND, AT NAINITAL Government Appeal No. 1167 of 2001 (Old No. 2186 of 1989) State of Uttarakhand …..Appellant Versus 1. Sohan Singh S/o not known 2. Arjun Singh S/o not known 3. Prara Singh (Abated) S/o not known …… Respondents Delivery of Judgment :- ………..29 March, 2007 Sri R. S. Rautela, learned Asstt. G.A. for the appellant. Sri S. K. Mandal, learned counsel for the respondents. Sri R. S. Sammal, learned counsel for the complainant. Coram: Hon’ble J.C.S. Rawat, J. Hon’ble P. C. Pant, J. Per :- Hon’ble J.C.S. Rawat, J. 1. This Government Appeal has been filed against the judgment and order dated 31.071989 passed by Shri K. N. Upadhyaya, the then IInd Additional Sessions Judge, Nainital In S.T. No. 152/1980, State Vs. Sohan Singh & others acquitting the respondents-accused under sections 302 r/w 34 I.P.C. and section 326 r/w 34 I.P.C. 2. The facts, in nutshell, are that on 06.06.1980 at about 6a.m the complainant Nirmal Singh PW3 and his father Subba Singh were ploughing the fields. The accused persons i.e. Sohan Singh, Arjun Singh and Pyara Singh armed with ‘lathi’, ‘bhala’ and ‘gadasa’ respectively came there. Sohan Singh asked Subba Singh as to why he had broken down the Mead (mud boundary) of their fields and his ox had eaten the sugarcane from the field of the accused persons. On this, the deceased-Subba Singh replied him that as to why he was fighting with him, and it generally - 2 - happened at the time of ploughing. Subba Singh further replied him that he had no intention to break down the mud boundary. But, the accused persons did not agree with him and they assaulted the father of the complainant by ‘lathi’, ‘bhala’ and ‘gadasa’ Consequently thereupon, the father of the complainant sustained grievous injuries on his person. It was further alleged that the accused persons would also have received some injuries on their person at the time of incident when Subba Singh tried to defend himself by a ‘lathi’ which was available with him. The mother of the complainant i.e. Smt. Kartar Kaur PW4 and his sister also came at the spot at the time of incident. When Smt. Kartar Kaur PW4 tried to rescue her husband, the respondents-accused assaulted her also. Thereafter, the accused persons-respondents fled away from the scene of occurrence. Thereafter, the injured- Subba Singh was taken to the police station on a bullock-cart by his son Nirmal Singh PW3 and wife Smt. Kartar Kaur PW4. When they reached near the gate of police station the injured was found dead. A report of the incident was lodged on the same day i.e. 06.06.1980 at about 7:50am. The police prepared the inquest report Ex.ka.6 of the dead body of the deceased and also prepared photo lash Ex.ka.13. The dead body of the deceased was sent for postmortem. 3. The investigation was taken up which culminated into the submission of the chargesheet. After submission of chargesheet the respondents-accused were committed to the court of Sessions fro trial and the trial court framed charges against the respondents- accused. The respondents-accused denied charge levelled against them and claimed the trial. - 3 - 4. The prosecution in support of its case examined as many as six witnesses. Rebhadhar Sharma PW1 was the Head Constable posted at police station Sitarganj at the time of incident. He proved the Tehrir report and G.D. entry. Dr. Ram Swaroop PW2 was the medical officer, who medically examined Smt. Kartar Kaur PW4. 5. The prosecution has also examined Nirmal Singh PW3, who was the son of the deceased Subba Singh. Nirmal Singh PW3 is the informant and eye-witness of the incident. Smt. Kartar Kaur PW4 is the wife of the deceased. She was also eye-witness of the incident. Dr. P. H. Gupta PW5 is the medical officer. He conducted the post mortem of the deceased on 06.06.1980 at 4 p.m. and found the following ante- mortem injuries on the person of the deceased:- (i) Incised wound 6cms x 1/2cm bone deep over right & back part of head. (ii) L.W.(lacerated wound) 4cm x 3/4cm bone deep over left back part of head above left ear. (iii) Abraded contusion 2cm x 2cm over the left side of face just outer left eye. (iv) Multiple abraded contusions in an area of 11cm x 8cm over the back of lower part of right arm entering on to the right elbow. (v) Multiple abraded contusion in an area of 10cms x 6cms over the back of right hand extending on to the wrist. (vi) Multiple contusion in an area of 8cm x 4cm over outer back and upper part of arm. (vii) Multiple abraded contusion 14cms x 10cms over the outer, back and middle lower part of left area. (viii) I.W.(incised wound) 1cm x 1/4cm bone deep tapering upwards over the outer aspect of left elbow. - 4 - (ix) Abraded contusion 6cm x 4cm over the front and outer aspect of left elbow. (x) Contusion 6cm x 4cms over the back of left writs. (xi) Contusion 4cms x 2cms over the left side chest just left to nipple. (xii) Contusion 10cms x 2cms over the left side of abdomen and 12cm away from umbilicus. (xiii) Multiple abraded contusion in an area of 18cms x 10cm over the right upper past of back extending on to the back of shoulder. (xiv) Multiple abraded contusion in an area of 29cm x 26cms over the back just below the lower angles of scapulae. (xv) Multiple contusion in an area of 13cms X 13cms over the right hip. (xvi) Multiple contusion in an area of 18cms x 14cms over the back of left hip. (xvii) Multiple abraded contusion in an area of 10cm x 6cm over the outer part of right knee. (xviii) L.W. 8cm x 2cm bone deep over front & middle part of right leg. (xix) L.W. 1cm x 1/2cm bone deep with fracture of febula over the outer aspect of right ankle. (xx) Two L.W. each measuring 1cm x 1/4cm bone deep with fracture of fibula bone over the outer aspect of left ankle. (xxi) Facture of 5th, 6th & 7th left ribs found on opening as mentioned over leaf. In the opinion of the Medical Officer, the death of the deceased was cause due to shock and haemorrhage resulting from ante- mortem injuries sustained by him. The Medical Officer also proved the postmortem report Ex.ka.7. 6. The prosecution has also adduced the evidence of Vikram Singh Bisht (PW6). He was the Investigating - 5 - Officer of this case. He proved the inquest report of the deceased, challan lash, photo lash & site plan etc. 7. The respondents-accused were examined u/s 313 Cr.P.C. and they had pleaded not guilty of the offence. The respondents-accused further stated that they have been falsely implicated in this case to save themselves. 8. The learned trial court on his appreciation of the evidence in the case held the respondents not guilty and acquitted them. It was observed by the trial court that the medical officer had stated in his evidence that at the time of medical examination of Smt. Kartar Kaur PW4 an old injury was found on her teeth and she was not able to open her mouth at the time of medical examination. If the injury was found inside her mouth it was possible to receive/sustain injury on her face also. But, Smt. Kartar Kaur PW4 had not sustained any injury on her face. The prosecution has not explained the injuries on the person of the accused/respondents. The medical officer had stated in his evidence that there was no injury of pointed weapon on the body of the deceased. In view of this, the trial court had held that the prosecution story is not believable. It was further observed that Nirmal Singh PW3 had stated in his evidence that when he and his father were working in the field the accused persons came there and started beating his father. On hearing the cry, his mother and sister also came at the spot. But, the PW3 did not say anything as to whether he was assaulted by the accused or not. On the basis of this statement of PW3, the trial court was of the view that the evidence of PW3 cannot be relied upon. It was further observed that the FIR is ante-timed. It was further held that the medical - 6 - officer has stated in his evidence that the injuries sustained by the deceased were not grievous in nature. It was mentioned in the report that the ‘bhala’ was used by the accused-respondent at the time of assault. Thus, the trial court was of the view that if there was no injury of ‘bhala’ on the person of the deceased, the medical evidence cannot be relied upon. The trial court has discarded the evidence of PW3 & PW4 on the ground that even PW3 and PW4 could not state the exact place of incident. It was further observed that the incident took place in the morning, but no independent witnesses were examined by the prosecution. In view of the above, the trial court was of the view that the prosecution has not proved its case beyond reasonable doubt. In this way, the trial court acquitted the respondents-accused. 9. We have heard learned counsel for the parties and perused the record carefully. 10. Learned AGA for the appellant-State contended that the FIR was lodged immediately after the incident. The evidence of eye-witnesses has not been shaken during the cross examination. It was further contended that the trial court has erred in holding that the presence of Nirmal Singh PW3 and Smt. Kartar Kaur PW4 was doubtful. It was further contended that Nirmal Singh PW3 was ploughing the field with his father Subba Singh (deceased) in the morning and his mother Smt. Kartar Kaur PW4 reached at the place of occurrence on hearing the cry of her husband while the respondents-accused were assaulting Subba Singh. It is indubitable that there are eye-witnesses of the incident i.e. Nirmal Singh PW3 and Smt. Kartar Kaur - 7 - PW4. Smt. Kartar Kaur PW4 is an injured witness, who gives credence to the prosecution story that she was present at the spot at the time of incident. Learned A.G.A. for the appellant further contended that the prosecution has proved its case beyond reasonable doubt against the respondents-accused. It was further contended that the trial court had held that the place and time of the incident was admitted to the respondents-accused in the cross case. The trail court had to see as to who was the aggressor. The trial court has further held that it was not the case of free fight. The trial court has erred in not giving any finding as to who was the aggressor in this case. It was further contended that the findings recorded by the trial court were against the record and evidence. As such, the findings are perverse. 11. Learned counsel for the respondents-accused submitted that the trail court has rightly acquitted the respondents-accused. It was further contended that the view taken by the trial court was a possible view even though the occurrence was admitted by the respondents-accused, High Court should not interfere in the judgment of acquittal rendered by the trial court. The High Court after scanning the entire evidence cannot hold that the judgment of the trial court was illegal when it was a reasonable and possible view taken by the trial court. It was further contended that there was no material for the genuineness of the dispute; there was no motive as was held by the trial court; the FIR was rightly held to be ante-timed and the place of occurrence was not established by the prosecution during the evidence. - 8 - 12. Before dealing the submissions of the parties, we would like to discuss the legal position. It is well settled principle of law that there is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquitted should not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and irrelevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 13. It needs to be mentioned here that it is not disputed that the deceased met a homicidal death on account of injuries sustained by him on the date of - 9 - occurrence. The post mortem report of the deceased Ex.ka.7 shows that the death of the deceased was caused due to shock and haemorrhage resulting from ante-mortem injuries sustained by the deceased. The Medical Officer has proved the post mortem report Ex.Ka.7. Dr. P.H. Gupta PW5 who conducted the postmortem has opined that the death of the deceased occurred due to the shock and haemorrhage from ante- mortem injuries. Perusal of the inquest report Ex.ka.6 reveals that the death of the deceased occurred due to injuries sustained by him at the time of incident. Thus, it is amply established that the deceased met a homicidal death on account of injuries sustained by him. 14. Now, we have to consider whether the respondents-accused were responsible for the injuries sustained by the deceased or not. The prosecution had adduced the eye-accounts evidence of Nirmal Singh PW3 and Smt. Kartar Kaur PW4, who are the son and wife of the deceased respectively. Both the witnesses have narrated the entire incident. They have stated in their evidence that on 06.06.1980 at about 6a.m. when Nirmal Singh PW3 and the husband of deceased (Subba Singh) were ploughing the field, all of a sudden the respondents-Soban Singh, Pyare Singh and Arjun Singh came there. Sohan Singh was having a ‘lathi’ in his hand. Arjun Singh and Payra Singh were having ‘bhala’ and ‘gadasa’ respectively in their hands. The accused persons asked the deceased as to why he had broken the Mead (mud boundary) of their fields and why he had allowed his ox to eat the sugarcane of the respondents-accused. The deceased replied him that it was unintentional but the accused persons immediately - 10 - assaulted the deceased with the arms which they were having in their hands. On hearing the cry of Subba Singh, Smt. Kartar Kaur PW4 and her daughter reached at the spot. When Smt. Kartar Kaur PW4 tried to rescue her husband she was also beaten by the accused person, due to which she sustained grievous injuries on her person. Subba Singh sustained the injuries and fell down on the field itself. Thereafter, a bullock cart was called from the house of the witnesses and the injured-Subba Singh was taken to the police station. When they reached near the gate of the police station the injured was found dead by the witnesses. The prosecution has also adduced the evidence of Rebhadhar Sharma PW1, who was a formal witness in this case. He was the Head Constable at police station Sitarganj at the time of incident. He proved the tehrir report and the G.D. entry. Dr. Ram Swaroop PW2 was the medical officer, who examined the injuries of Smt. Kartar Kaur. 15. Learned A.G.A. for the appellant contended that the trial court has erred in holding that the FIR was ante-timed. It was further contended that the prompt FIR was lodged and the FIR contains the details i.e. who had committed the crime, the parts played by them and the weapon used by the accused. It was further contended that the trial court has further erred in holding that Nirmal Singh PW3 was also the witness of panchayatnama and he had not stated at the time of preparing it that these injuries were caused with lathi, bhala and gadasa, whereas this fact has been indicated in the FIR. The trial court has held that the FIR was ante-timed. Perusal of the record reveals that the FIR was recorded at about 7:50am on 06.06.1980 in the - 11 - police station. The panchayatnama was prepared thereafter. Perusal of the panchayatnama Ex.ka. 6 reveals that the panchayatnama was prepared in pursuance of the report submitted to the police on 06.06.1980 at about 7:50a.m. and it also contains the crime no.188 under section 302, 323 & 324 IPC police station Sitarganj. Thus, these facts clearly reveal that when the panchayatnama was prepared the FIR had already come into existence and the case had already been registered as crime no. 188 in the police station. Perusal of the record reveals that the respondents- accused had also filed the copy of the G.D. Ex.kha.2 by which a cross case of the respondents had been registered against Subba Singh, Nirmal Singh etc. This G.D. report shows that the respondents had submitted their report at 9:30am in the police station. The police made an endorsement in the said G.D. that Nirmal Singh has already lodged a report against the respondents-accused under section 302, 323 & 324 IPC as case crime no.188 and the case of the respondents was registered as a cross case crime no. 188A. This fact also reveals that the FIR had come into existence before 9:30am. It cannot be held by any evidence on record that the said report had not come into existence prior to the inquest report. This fact on record leaves no room for doubt that the FIR was lodged prior to the preparation of panchayatnama. It is not necessary to mention all the facts in the panchayatnama. It is not required that it should be recorded that the injuries have been caused by lathi, bhalla and gadasa. It is well settled law that the details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what - 12 - circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under Section 174 Cr.P.C. Neither in practice nor in law is it necessary for the person holding the inquest to mention all these details. {Reliance placed in Pedda Narayana v. State of A.P. 1975 SCC (Cri) 427, AIR 1975 SC 1252; Shakila Khader v. Nausheer Cama 1975 SCC(Cri) 379, AIR 1975 SC 1324; Eqbal Baig v. State of A.P. 1986 SCC(Cri) 232, AIR 1987 SC 923; Khujji v. State of M.P. 1991 SCC (Cri) 916, AIR 1991 SC 1853; Amar Singh v. Balwinder Singh 2003 (2) SCC 518, 2003 SCC(Cri) 641; Meharaj Singh v. State of U.P. 1994 SCC(Cri) 1391 and Radha Mohan Singh v. State of U.P. 2006(2) SCC 450} In the case in hand, the trial court on the one hand has held that there was a prompt FIR in this case and on the other hand the trial court has given a self-contradictory finding that the FIR is ante-timed. Thus, we are not in agreement with the findings recorded by the trail court. There can be no other conclusion in this matter except that the FIR was recorded well in time. 16. Learned counsel for the respondents-accused contended that there was a delay in lodging the FIR. Learned A.G.A. for the appellant contended that there was a prompt FIR and the prompt FIR also inspires confidence that the version recorded therein was a natural and correct version. The FIR was lodged at about 7:50am and the incident took place at about 6am, whereas the distance between the police station and the place of incident is only about 3kms. It was further contended on behalf of the respondents- accused that the delay in lodging the FIR often results - 13 - in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. Perusal of the record reveals that the witnesses had stated in their evidence that immediately after the incident they took 1 hour to carry the injured to the police station from the place of incident. The above inference is lent credence to the fact that Nirmal Singh PW3 who was present at the scene of the occurrence promptly reported the matter to the police station at 7:50am on the date of incident i.e. 06.06.1980. The prompt FIR thus inspires confidence that it was not the outcome of due consultation or deliberation. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trail. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Therefore, we do not find any substance in the contention advanced on behalf of respondents-accused. 17. Learned A.G.A. for the appellant contended that the trial court has erred in ignoring the eye-account of incident. Nirmal Singh PW3 and Smt. Kartar Kaur PW4 were present at the spot at the time of incident. They were the eye-witnesses of the incident. The witnesses adduced before the trail court have sufficiently proved that the respondents-accused assaulted the deceased, - 14 - due to which the deceased sustained grievous multiple injuries and succumbed to is injuries. Learned counsel for the respondents refuted the contention. Learned counsel for the respondents-accused assailed the testimony of Smt. Kartar Kaur PW4 on the ground that the injuries found on her person were old. The trial court has observed in the impugned judgment which is as follows:- ““gkykafd ekj&ihV lqcg gks pwdh Fkh mlds ckotwn Fkkus ls ;g izrhr gksrk gS fd pqVSy lh/ks Fkkus ugh x;s le; 10%30 ij mldk MkDVjh eqvk;uk gqvk vkSj MkDVj ds fglkc ls mlds tcMs esa iqjkuh pksV Fkh vkSj og viuk eq¡g [kksyus esa vleFkZ Fkh mlds eq¡g esa dksbZ ckgjh pksV ugha Fkh vkSj MkDVj dk dguk gS fd ;fn mls MUMs ls ekjk tkrk rks eqWg ds ckgj pksV vkuk t:jh Fkk D;ksafd mldk tcMk [kqYkrk ugh Fkk blfy;s vfHk;kstu dks ;g dFku fd pqVSy dks pksVsa vk;h lansg ls ijs ugha gS [kkl