Jagdish Murav vs State Of U.P. & Ors

When the alleged occurrence took place, he was working as a driver of a vehicle belonging to one Mangal Prasad. He had parked the said vehicle at Kovadeh near Sahabganj, allegedly, waiting for the passengers.

The Appellant together with other two accused, viz., Ramsahay, Udaybhan and Ganga who were residents of his village allegedly were present at the place of occurrence. The relationship between the parties admittedly was not good. Ramashray, father of PW-2 had an ongoing dispute with Ramniwas, father of Accused No. 4, Ramsahay and Vyas, father of Accused No. 3 Udaybhan. Admittedly Udaybhan was the uncle of Ramvander Pandey who instituted a case against the brother of Ramsurat under Sections 323, 504 and 506 of the Indian Penal Code. They allegedly asked him to withdraw the litigations to which he replied that he should ask therefor the persons concerned, i.e., who had been fighting out the cases.

As per the prosecution witnesses, the accused had come near the vehicle of the deceased. He wanted to come out of the vehicle but he was prevented from doing so. Thereafter upon alleged exhortation of Ramsahay, Udaybhan and Ganga, the Appellant herein allegedly fired a shot at his neck from his katta (country made pistol) injuring right side of his neck.

Ashok Babu and Mangal Prasad immediately after the occurrence allegedly came to the spot and took PW-2 to the Medical College. A First Information Report was lodged at 10.15 p.m. on the same day. Although PW-1, the informant allegedly went to the Medical College, he did not talk to the doctor. It was Mangal Prasad who took the injured to the doctor. Parentage of PW-2 was also not disclosed before the hospital authorities, which was unusual if PW-1 had taken him thereto.

PW-2, in his statement, categorically stated that PW-1 came to see him on 7.3.1993. They talked to each other. PW-2 had not seen the alleged eye witnesses at the place of occurrence before the incident. It was the witnesses, viz., PW-1, Dhanusdhari and Chhedi had allegedly informed him that they had come to Sahabganj and witnessed the incident. PW-1, it is interesting to note, did not say so. Dhanusdhari and Chhedi, despite being relatives of PW-2 were not examined. The reason for their non-examination has not been disclosed. PW-3 Dr. Birender Kumar was on emergency duty. According to the doctor, thumb impression of PW-2 was taken on the hospital records. Thumb impression of Mangal Prasad had also been taken. PW-2, therefore, when examined by the doctor, was not unconscious. There was no reason as to why the thumb impression of the alleged eye witnesses and close relative of PW-2, viz., PW-1 was not taken. In fact there is nothing on record to show that PW-2 was taken to hospital by PW-1.

Investigation of the case was conducted by PW-4 in a slip-shod manner. PW-4 did not explain as to why the original general diary was not produced. In terms of the Police Act, a copy of the statement of the First Information Report is required to be handed over to the informant. First Information Report was required to be taken down in the general diary. Production of the general diary was necessary as the First Information Report was said to be ante-timed and ante-dated. The learned Trial Judge categorically opined the same to be so. No explanation has been given as to why the independent witnesses whose statements had allegedly been recorded were not examined. There was no reason as to why the statement of the PW-2 was taken after such a long time although according to the medical report he was not unconscious as would be evident from the fact that his left thumb impression was taken in the hospital register. If PW-2 was taken within a few minutes to the District Hospital, the doctor incharge must have informed the police. The Investigating Officer does not say so. He had not made any attempt to apprehend the culprits immediately. There is absolutely no reason as to why in a case of grave nature, a copy of the First Information Report was sent to the Circle Officer, 4 days after the incident and to the court 8 days thereafter. Section 157 of the Code of Criminal Procedure mandates that the First Information Report should be sent to the nearest magistrate within a period of 24 hours. The incident took place at Gorakhpur which is a District Town. Section 147 of the Police Act and the Rules framed thereunder provide for safeguards for the accused persons from false implication. The legal requirements were not complied with. This Court in Meharaj Singh v. State of U.P. [(1994) 5 SCC 188] stated the law, thus:

The High Court failed to analyse the evidences on record. It proceeded to pass its judgment on mere surmises and conjectures.

The High Court did not critically scrutinize the evidence of PWs 1 and 2. Having regard to the facts and circumstances of this case in our opinion the Appellant was entitled to benefit of doubt. [See State of U.P. v. Gambhir Singh and Others, (2005) 11 SCC 271] It is no doubt true that PW-2 suffered a grievous injury. By reason of the said fact alone, the judgment of acquittal could not have been interfered with by the High Court.

For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed.