Allahabad High Court
Smt. Santosh vs State Of U.P. on 13 September, 2024
Bench: Ashwani Kumar Mishra, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Neutral Citation No. - 2024:AHC:149629-DB Court No. - 43 Case :- CRIMINAL APPEAL No. - 3599 of 2019 Appellant :- Smt. Santosh Respondent :- State of U.P. Counsel for Appellant :- Ajay Kumar Pandey,Kuldeep Kumar,Manoj Kumar Tiwari Counsel for Respondent :- G.A. With Case :- CRIMINAL APPEAL No. - 3595 of 2019 Appellant :- Ramendra Respondent :- State of U.P. Counsel for Appellant :- Kuldeep Kumar Counsel for Respondent :- G.A. With Case :- CRIMINAL APPEAL No. - 4120 of 2019 Appellant :- Gaurav Respondent :- State Ofu.P. Counsel for Appellant :- Ajay Kumar Pandey,Manoj Kumar Tiwari,Sunil Kumar Counsel for Respondent :- G.A. Hon'ble Ashwani Kumar Mishra,J.
Hon’ble Dr. Gautam Chowdhary,J.
(Delivered by Hon’ble Dr. Justice Gautam Chowdhary)
1. With regard to an incident occurred on 22.12.2015 at about 12:30 P.M., a written tehrir (exhibit Ka-1) was given by the informant namely, Surendra Singh with the averments that at present he is residing in District Moradabad at Nand Nagari Peetal Nagari in front of Shiv Mandir, his son Rishiraj used to live with his wife at B/22/2 Harsh Vihar, Delhi but he used to come frequently at village to look after the agricultural affairs. On 21.12.2015, his son Rishiraj and his nephew Anil son of Lakhpat Singh, had gone to village for peeling of sugarcane. On 22.12.2015 at about 11:30 A.M. his nephew Anil, Sanjay were sitting on a cot and Rishiraj was sleeping on that cot. The villagers namely Ramendra, Gaurav and wife of Ramendra namely, Smt. Santosh, (accused-appellants) Omendra, Yogendra, Rahul rushed to his house armed with lathi, country made pistol and had assaulted his son Rishiraj with country made pistol, lathi, danda and bricks, as a result of which, he sustained injuries and died on the spot. The informant tried to stop accused persons but they fired and threatened him and dragged the deceased Rishiraj towards the temple and again assaulted him by bricks on his head. The accused-appellant Ramendra also fired in the temple. Upon such report, a first information report came to be lodged on 22.12.2015 at about 12:30 hours as Case Crime No. 230 of 2015 under Sections 147, 148, 149, 452, 302, 34 I.P.C. at Police Station Angauta, District Bulandshahr. The Inquest was conducted on 22.12.2015 at about 13:00 hours. The inquest witnesses found that the deceased had sustained injuries on his head, forehead cut mark over the neck and rubbing mark over the waist. The inquest witnesses opined that the deceased died due to injuries sustained on the head but to ascertain the true cause of death post mortem be conducted. The post mortem of the deceased consequently, has been conducted on the same day i.e. 22.12.2015 wherein following injuries have been found on the deceased:-
1. Multiple lacerated wound present on had size varying from 2 X 1 X bone deep to 3 X 2 X bone, clotted blood present on reploration bone underneath found fractured. Membrane and brain found lacerated about 40 ml. Blood found in cranial cavity.
2. Lacerated wound of size 2 X 1 X bone deep present on middle part of forehead, blood present, margins irregular.
3. Lacerated wound of size 2 X 1 X muscle deep on right eye brow aspect.
4. Lacerated wound of size 1 X .5 X muscle deep on left side face.
5. Lacerated wound of size 1 X 1 c.m. X muscle deep present on lower, margins irregular.
6. Lacerated wound of size 0.5 X 0.5 cms. X muscle deep present on chin.
7. Lacerated wound of size 1 X 0.5 c.m. X muscle deep present on right side of neck, 8 c.m. below right ear.
8. Lacerated wound of size 1 X .7 x through & through on left ear pinna on upper part.
9. Abrasion of sixe 15 X 12 c.m. on middle of back chest.
2. The immediate cause of death is due to shock and hemorrhage as a result of antemortem injuries. Relying upon the statements of the eye-witnesses as well as on the basis of recovery of pistol, bricks etc., a charge sheet came to be submitted against the accused-appellants under Sections 452, 302 I.P.C., 34 I.P.C. vide charge sheet no. 57 of 2016 dropping three named accused persons namely, Omendra, Yogendra, Rahul. The charge sheet no. 28 of 2016 under Section 25 Arms Act was also submitted against the accused-appellant Ramendra. Cognizance was taken in the matter by the concerned Magistrate vide order dated 02.04.2016 and the case was committed to the Court of Sessions where it got registered as Sessions Trial No. 226 of 2016 (State Vs. Ramendra and others), arising out of Case Crime No. 230 of 2015 under Sections 148, 302/149, 452 I.P.C. and Sessions Trial No. 227 of 2016 (State Vs. Ramendra) arising out of Case Crime No. 231 of 2015 under Section 25 Arms Act, relating to Police Station Agauta, District Bulandshahr. The Court of Sessions framed charges against the accused-appellants under Sections 148, 302/149, 452 I.P.C. and Section 25 of the Arms Act. The accused-appellants denied the charges and demanded trial.
3. During the trial, the prosecution has relied upon following documentary evidence:-
“(i) Written report (Ex. Ka-1).
(ii) F.I.R. (Ex. Ka-2)
(iii) Copy of G.D. entry report (Nakal Rapat) (Ex. Ka-3)
(iv) Inquest report (Panchayatnama) (Ex. Ka-4)
(v) Photograph of dead body (Ex. Ka-5)
(vi) Challan of dead body (Ex. Ka-6)
(vii) Letter of C.M.O. (Ex. Ka-7)
(viii) Specimen Stamp (Ex. Ka-8)
(ix) Recovery memo of Empty Cartridges (Ex. Ka-9).
(x) Recovery memo of blood stained brick(Ex. Ka-10)
(xi) Recovery memo of blood stained brick (Ex. Ka-11)
(xii) Recovery memo blood stained earth (Ex. Ka-12).
(xiii) Recovery memo of blood stained and plain earth (Ex. Ka-13).
(xiv) Site plan with Index (Ex. Ka-14)
(xv) Recovery memo of country made pistol and emptry cartridges (Ex. Ka-15)
(xvi) Post Mortem Report (Ex. Ka-16).
(xvii) Charge sheet (Ex. Ka-17)
(xviii) Charge sheet (Ex. Ka-18)
(xix) Order of District Magistrate (Ex. Ka-19)
(xx) Charge seet (Ex. Ka-20)
(xxi) F.I.R. (Ex. Ka-21)
4. On the other hand, the following were the prosecution witnesses:-
(i) Surendra Singh (P.W.1).
(ii) Sanjay (P.W.2).
(iii) Anil Kumar (P.W.3).
(iv) Vikas Kumar (P.W.4).
(v) Arun Kumar (P.W.5).
(vi) Dr. Pradeep Rana (P.W.6)
(vii) Hriday Narayan Singh (P.W.7)
(viii) Srinivas (P.W.8)
(ix) Vishal Singh (P.W.9)
5. The informant was produced as P.W.1, who has supported the prosecution case and has stated that the accused-appellant Ramendra was armed with country made pistol, however rest of the accused had assaulted the deceased with bricks and danda. The accused-appellant Santosh had trident. All the accused persons with a common intention had assaulted his son with country made pistol, lathi, danda and bricks on account of which, head injuries were sustained by him and in a dead state, they dragged him towards the temple, where the accused persons hit the bricks on his head. The accused-appellant Ramendra had kept the country made pistol in the hand of his son. In the cross examination, he has stated that on the day of incident he was residing at Peetal Nagri at Moradabad and the Gram Pradhan had intimated him about the incident. The distance from the Nand Nagri Peetal Nagri to Village Pavsara is 110 kilometers. It takes about two and a half hours to quarter to three hours to reach Pavsara, District Bulandshahr from Moradabad Nagari. He has also stated that he has not seen free fight of his son Rishiraj with accused-appellants Ramendra, Santosh. His son Rishiraj (deceased) and the son of Nanak Netaji had gone to jail in connection with the murder of two unknown children. Apart from aforesaid, it has also been stated that a case under Section 308 I.P.C. was also lodged against Rishiraj (deceased) in which the accused-appellant Ramendra had sustained injury. It has also been stated that in the F.I.R. he has not stated that the accused-appellant Santosh was armed with trident but for the first time in his examination in chief, he stated that accused-appellant Santosh, was armed with trident. It has also come in the cross of P.W. 1 that when he reached village, one Sanjay and Anil told him about the incident.
6. P.W.2 Sanjay, who is an eye-witness of the incident, has stated that on 22.12.2015 at about 11:30 A.M. he along with Anil, Rishiraj (deceased) were present at the house of Rishiraj. The accused-appellants Santosh, Ramendra and Gaurav as well as Omendra, Yogendra and Rahul came to house of deceased armed with lathi danda and country made pistol and assaulted and fired, thereafter dragged him towards the temple, which incident was seen by the witness and Anil. In the cross examination, he has also deposed that the matter of the slip in the court is not stated by him after taking legal advice and had not stated clearly as to what weapon was used by which accused persons, however the assault by trident in the eyes of deceased was intimated to the Investigating Officer but he did not know the reason as to why the investigating officer did not transcribe the same. Furthermore, in the cross examination it has also come into light that the police reached at the spot at about 11:30 A.M. and the dead body was sealed in his presence between 11:30 A.M. to 11:45 A.M.
7. P.W.3 Anil Kumar, who is the cousin brother of the deceased and is an eye-witness to the incident has also supported the prosecution version. He has stated that all the accused persons had assaulted the deceased with lathi, danda and bricks and accused-appellant Ramendra had fired upon him, thereafter he dragged him towards the temple. However in his cross examination he has stated that the accused-appellant Santosh had assaulted with a trident in the eyes of deceased but as to why the Investigating Officer has not recorded the same in his statement under Section 161 Cr.P.C., is not known to him.
8. P.W. 4 is the Constable 1198 Vikas Kumar Munshi and is a formal witness. However, it has been specifically stated by him that no written tehrir was written before him, rather 3-4 persons had given the tehrir.
9. P.W.5 Sub-Inspector Arun Kumar, who has explained the steps taken during the course of investigation. It has also been stated by him that at the place of occurrence one empty cartridge and one missed cartridge of 315 bore were recovered. Apart from it, two blood stained bricks as well as blood stained mud and plain mud were also recovered by him. The recovered country made pistol was neither sent to the Forensic Science Laboratory nor there is any red colour mark over the bricks.
10. P.W.6 is Dr. Pradeep Pradeep Rana, who had conducted the post mortem. The injuries sustained by the deceased was corroborated by the oral evidence. However, in the cross examination it has been stated that the deceased was done to death at about 02:00 P.M. on 22.12.2015. Furthermore, no injury of trident was found on the person of the deceased and also that there is no injury of bricks on his body but there is a possibility of injury caused by bricks on his head.
11. P.W.7 is the Inspector Hriday Narayan Singh, who has supported the prosecution version. In the cross examination in reply to a question that as to whether he recorded the fact that the assault by trident has been told/informed by PW-3 Anil and PW-2 Sanjay, this witness has answered in negative.
12. Other witnesses of prosecution are P.W.8, who is a retried Sub-Inspector namely Sriniwas and P.W.9 Constable No. 3044 Vishal Singh, and they are police personnel and are formal witnesses. They have also supported the prosecution case at the trial on the basis of evidence collected during the investigation.
13. The accused has been confronted with the evidence collected against them during trial. Their statement under Section 313 Cr.P.C. came to be recorded wherein they stated that they have been falsely implicated and that the evidence adduced is not reliable.
14. On the basis of the above material produced during the trial, the Court of Sessions has come to the conclusion that the guilt of the accused appellants has clearly been established beyond reasonable doubt and consequently, the accused-appellants have been convicted and sentenced in Sessions Trial No. 226 of 2016 (State Vs. Ramendra and others) arising out of Case Crime No. 230 of 2015 under Sections 148, 452, 302/149 I.P.C., Police Station Angauta, District Bulandshahr, vide Judgement and order dated 25.04.2019 passed by Special Judge (E.C.Act)/Additional District and Sessions Judge,Court Room No. 14, District Bulandshahar by which, the accused-appellants have been sentenced to undergo rigorous imprisonment of four years along with fine of Rs. 4000/- each and in default in payment of fine to undergo for additional simple imprisonment of two months, for the offence under Section 452 I.P.C., to undergo for imprisonment of two years along with fine of Rs. 2000/- and in default in payment of fine to further undergo for additional simple imprisonment of two months for the offence under Section 148 I.P.C., to undergo for life imprisonment along with fine of Rs. 5000/- each and in default in payment of fine to further undergo for additional simple imprisonment of three months for the offence under Section 302/149 I.P.C. All the sentences are directed to run concurrently. It is this Judgement and order of conviction dated 24.04.2019 which is under challenge before this Court by the accused-appellants.
15. It goes without saying that accused-appellant namely, Ramendra has been acquitted vide aforestated Judgement and order passed in Sessions Trial No. 231 of 2015 (State Vs. Ramendra) arising out of Case Crime No. 231 of 2015 under Sections 25 Arms Act Police Station Angauta, District Bulandshahr.
16. Challenging the impugned Judgement and order of conviction and sentence against the accused appellants, Sri Satish Trivedi, learned Senior Counsel assisted by Ajay Kumar Pandey, learned counsel for the accused-appellants, submits that the Court of Sessions has erred in recording the findings of conviction and sentence against the accused-appellants inasmuch as the testimony of witnesses are not reliable and that the accused-appellants have been falsely implicated. He further argued that P.W.3 is the eye-witness of the incident and is cousin brother of the deceased. He neither informed the informant about the incident, who is his paternal uncle nor did care to lodge the F.I.R. whereas, the incident was reported to the informant by the Gram Pradhan of the village. The Gram Pradhan of the village was neither been interrogated by the police nor was produced in evidence before the trial Court. Learned counsel further submits that the informant used to reside at a distance of 110 kilometers from the place of occurrence, which takes about two and a half hours to three hours to cover the said distance, who was intimated about the incident between 10:30 to 11:00 hours. Taking into account that the informant was informed at about 10:30 hours, then he ought to have reached District Bulandshahr at about 13:00 hours on 22.12.2015 but the F.I.R. has been lodged at about 12:30 P.M. with regard to the incident which took place at about 11:30 hours which cannot be believed by a man of ordinary prudence and it appears that the F.I.R. is ante-time and thus the version of the F.I.R. is unreliable. Apart from the aforesaid, the testimony of the prosecution witnesses is inconsistent with the medical evidence. It is thus contended that the accused-appellants have been falsely roped in the present case and is therefore liable to be acquitted from the charges levelled against them.
17. Sri Vikas Goswami, learned A.G.A. for the State has opposed the contentions of learned counsel for the accused-appellants and submits with reference to the cross examination of the P.W.2 that the police came at the spot at about 11:30 A.M. and the dead body was sealed in his presence between 11:30 A.M. to 11:45 A.M. when as a matter of fact, the incident itself took place at about 11:30 A.M. and the F.I.R. was lodged at about 12:30 hours. In this regard, learned A.G.A. argued that the said witness is not an educated witness and it is not expected from him to remember every small detail of the incident and the manner in which the incident had happened is explained. Since he is a rustic witness as such some inconsistencies in his deposition is bound to occur. Discrepancies in the evidence of P.W.2 thus cannot be a ground to grant benefit to the accused appellants. In support of his submissions, learned A.G.A. has relied upon a decision of Hon’ble Apex Court rendered in the matter of Bhagchandra Vs. State of Madhya Pradesh reported in 2021 (4) Crimes (SC 533). It is thus contended that the findings of conviction and sentence is based upon the evidence available on record, which warrants no interference and therefore the impugned Judgement and order of conviction is liable to be affirmed by this Court.
18. We have heard Sri Satish Trivedi, learned Senior Counsel assisted by Ajay Kumar Pandey, learned counsel for the accused-appellants, and Sri Vikas Goswami, learned A.G.A. for the State and perused the material on record including the original record of the trial Court.
19. The manner in which the incident has occurred has already been noticed above. It is the specific case of the prosecution that while deceased was sitting along with P.W.2 and P.W.3 on a cot at his house at about 11:30 A.M., the accused-appellants came to the house of the informant, armed with lathi, danda, country made pistol and had assaulted the deceased-Rishiraj. The accused-appellant Ramendra fired upon the deceased and the accused-appellant Santosh had assaulted the deceased with trident in his eyes. Thereafter, the deceased was dragged towards the temple, where again the accused-appellant Ramendra had assaulted the deceased with bricks. The prosecution case is supported by the testimony of two eye witnesses namely, Sanjay (P.W.2), the villager and Anil Kumar (P.W.3), cousin brother of the deceased. The version of the eye-witnesses during the course of trial has been carefully perused by us.
20. Though F.I.R. was lodged against six accused but the charge sheet was filed only against three accused-appellants and the remaining three accused namely, Omendra, Yogendra and Rahul were dropped in the police report under Section 173 (2) Cr.P.C., when as a matter of fact, the prosecution witnesses have also assigned specific role to the aforesaid persons. The State did not file an application under Section 319 Cr.P.C. to summon those dropped persons as an accused. It is noteworthy that Section 149 I.P.C. deals with unlawful assembly and conviction with the aid of Section 141/149 I.P.C. cannot be recorded in the absence of at least five accused and in the instant case, there are only three accused-appellants, thus the charge under Section 149 I.P.C. itself was wrongly framed against the accused-appellants.
21. The inquest was started at about 12:30 hours and was concluded at 13:00 hours, whereas the F.I.R. was registered at 12:30 hours on 22.12.2015. The scribe in the inquest did not mention the details of the case crime number and Sections. However at the top of the inquest report, the sessions trial number as well as case crime number have been mentioned in different handwriting and in a different ink, ergo, it appears that the F.I.R. was not in existence at the relevant point of time i.e. the inquest report. The fact that Sessions Trial number is mentioned in inquest clearly suggests that details of the case has been incorporated in inquest only after committal of case to the Court of Sessions. This Court also takes note of the fact that neither the informant nor the prosecution witnesses were nominated as an inquest witness. According to the version of the P.W.1 informant, he was informed about the incident at about 10:30-11:00 hours by the village Pradhan however, the distance between District Moradabad and District Bulandshahr is about 110 kilometers, which takes about two and half to three hours to cover the same, thus as to how and under what circumstances the informant had lodged the F.I.R. at 12:30 hours is not explained by the prosecution. P.W.3, who is the cousin and eye-witness of the incident, neither informed the informant about the incident nor had lodged the F.I.R. and thus, there is a suspicion as to who got the F.I.R. lodged.
22. P.W.2 in his cross examination has specifically stated that the police came to the place of occurrence at about 11:30 hours of 22.12.2015, whereas in the inquest report it has been stated that on the information received by Sub-Inspector at about 12:30 hours of 22.12.2015, they reached at the place of occurrence and got the inquest conducted, which suggests that the P.W.2 was not present at the place of occurrence.
23. P.W.3 in his statement has assigned the role of causing injury by trident in the eyes of deceased to the accused-appellant Santosh, when as a matter of fact, the P.W.6 Dr. Pradeep Rana has specifically stated that no injury of trident was found upon the deceased, thus the version of the P.W.3 has no force, since it does not corroborate with the medical evidence. Thus the presence of P.W.3 is also doubtful. The assault of trident by the accused-appellant Santosh becomes doubtful.
24. P.W.6 Dr. Pradeep Rana has stated that there is a possibility that the deceased died due to injury sustain on his head. Apart from that there is no injury of bricks upon the person of the deceased but there is possibility of injury on his head. The time of death of the deceased is about 02:00 P.M. of 22.12.2015. The post mortem also reveals that there is no injury of dragging. However, the incident is said to have taken place at about 11:30 A.M. of 22.12.2015, thus the argument that F.I.R. is ante time cannot be brushed aside, lightly.
25. We find that the recovered country made pistol, by which it is alleged that fire shot was made, was not sent for examination to Forensic Science Laboratory. Ballistic report is a detailed document or analysis that investigates and examines the characteristics and behaviors of firearms, ammunition, and projectiles (bullets). It is often used in criminal investigations to understand how a shooting occurred, identify the type of weapon used, and possibly link a weapon or ammunition to a crime. The ballistic report includes the following:-
(A) Firearm Examination: Analysis of the type, model, and condition of the firearm used in the incident.
(B) Ammunition Analysis: Examination of the bullets and casings recovered from the crime scene, including their make, model, caliber, and any identifying marks.
(C) Trajectory Analysis: Study of the bullet’s path, which can help determine the shooter’s position, angle of fire, and possible distance from the target.
(D) Gunshot Residue (GSR) Analysis: Testing for residues left by the discharge of a firearm on the hands, clothing, or surrounding area, which can indicate if someone fired a weapon.
(E) Comparison Microscopy: A process where fired bullets and cartridge cases are examined under a microscope to compare striation marks or firing pin impressions, which can be unique to a specific firearm.
(F) Range Determination: Estimation of the distance between the firearm and the target, often based on the spread of gunpowder residues or the type of bullet wound.
(G) Wound Ballistics: Analysis of injuries caused by bullets, which helps understand the projectile’s behavior after impact, such as entry and exit wounds, fragmentation, and trajectory within the body.
(H) Serial Number Restoration: If a firearm’s serial number has been removed or defaced, techniques are used to restore the number for identification.
Thus ballistic reports are crucial in forensics as they can link a suspect to a crime, disprove alibis, or provide evidence of self-defense or intent. The information in these reports plays a vital role during the trial as expert testimony.
26. The ballistic report is necessary to be examined at Forensic Laboratory Test and the Hon’ble Apex Court in the matter of Pritinder Singh @ Lovely Vs. The State of Punjab, reported in 2023, Live Law (SC) 516, in paragraph no. 23, 24, 25 has observed as under:-
23. It will be relevant to refer to the following observations of this Court in the case of Sukhwant Singh v. State of Punjab:
“21. ………It hardly needs to be emphasised that in cases where injuries are caused by firearms,the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent.”
24. No doubt that this case has been recently distinguished by a three-Judges Bench of this Court in the case of Gulab v. State of Uttar Pradesh, relying on the earlier judgments of this Court in the cases of Gurucharan Singh v. State of Punjab and State of Punjab v. Jugraj Singh.
25. However, it is to be noted that the case of Jugraj Singh (supra) was a case of direct evidence, where there was evidence of two eye-witnesses. The present case is a case based on circumstantial evidence. In view of the serious doubt with regard to the credibility of the witnesses on the issue of extra-judicial confession and last seen theory, the failure to examine Ballistic Expert would, in our opinion, be a glaring defect in the prosecution case. We are, therefore, of the considered view that the prosecution has failed to prove the case beyond reasonable doubt and, as such, the accused are entitled to benefit of doubt.”
27. Thus Hon’ble Apex Court in the case of Pritinder Singh @ Lovely (supra) has opined that failure to examine the Ballistic Expert would be a glaring defect in the prosecution case and therefore, the trial Court has erred in failing to consider the non-availability of ballistic report. In absence of ballistic report in the instant case, it cannot be said that the accused-appellant Ramendra had fired from the recovered country made pistol. Needless to say that the trial Court has acquitted the accused-appellant Ramendra for the offence under Section 25 Arms Act. So far as the injuries caused by bricks by the accused-appellant Ramendra is concerned, the P.W.6 Dr. Pradeep Rana in his cross examination has specifically stated that the deceased had sustained no injuries of bricks over his body rather there is a possibility that due to fracas injuries might have been sustained. Apart from P.W.6, P.W.2 and P.W.3 have also assigned the general role of causing injuries by bricks to all the accused-appellants and therefore, we are of the opinion that once the accused-appellant Ramendra has been acquitted from the charges under Arms Act, rest accusation has no force in view of the statement of P.W.2, P.W.3 and P.W.6.
28. In the instant case, the ocular version is not in consonance with medical evidence and therefore there is a material contradiction. From the testimony of the P.W.2 and P.W.3 it is evident that the accused-appellants with a common intention had assaulted the deceased with lathi, danda, bricks, trident and a gun shot was also made but the same does not corroborate with post mortem report as well as testimony of the P.W.6 Dr. Pradeep Rana. The Hon’ble Apex Court in the matter of Amar Singh and others Vs. State of Punjab reported in 1987 (1) SCC 679 has held that if the evidence of the witnesses for the prosecution is totally inconsistence with the medical evidence, which is most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case.
29. In the matter of Jaikam Khan Vs. The State of Uttar Pradesh, reported in 2021 (13) SCC (716), the Hon’ble Apex Court has observed in paragraph no.82 as under:-
“82. We may gainfully refer to the following observations of this Court in the case of Anand Ramachandra Chougule v. Sidarai Laxman Chougala and others:
“10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradisinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defense. An accused is not required to establish or prove his defense beyond all reasonable doubt, unlike the prosecution. If the accused takes a defense, which is not improbable and appears likely, there is material in support of such defense, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.
11. The fact that a defense may not have been taken by an accused under Section 313 Cr.P.C again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defense taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand (2013) 4 SCC 422 : (2013) 2 SCC (Cri) 427, this Court observed: (SCC pp. 433-434, para 28)
“28. … When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defense. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt.””
30. We are not impressed by the reasoning assigned by the trial judge while convicting and sentencing the accused-appellants, especially in view of the manner in assigning the role to the accused-appellants. There is a contradiction between the ocular testimony and the medical evidence. In the facts of the case, we are of the opinion that the specific case of the eye-witnesses is completely belied by the medical evidence on record. Witnesses of fact alleged that initially firing was made by the accused-appellant Ramendra, while the remaining accused-appellants have assaulted the deceased Rishiraj with bricks, thereafter the deceased was dragged towards the temple, whereafter again the accused-appellants have assaulted the deceased with bricks, trident but no injury of trident is found upon the deceased. There are no injuries caused due to dragging of the deceased. The manner in which the alleged assault had taken place leading to his death, is bound to result in some grievous injuries but in the instant case, no such grievous injury is sustained by the deceased. P.W.3, who is the cousin brother of the deceased neither reported the incident to the informant nor did he care to lodge the F.I.R. and it was the Gram Pradhan, who had intimated the informant about the incident but he is not adduced in evidence before the trial Court. The recovered fire arm was not sent to Forensic Science Laboratory to verify as to whether the firing was made from that country made pistol or not, nor the blood stained bricks were found. The contradiction, therefore, remains unexplained. In our opinion, the material contradiction in the medical evidence viz-a-viz the eye-witness account clearly creates a doubt on the prosecution case. We do not subscribe to the view taken by the Sessions Court that these are aspects which could be overlooked.
31. Hon’ble Supreme Court has dealt with a similar issue in Viram @ Virma Vs. The State of Madhya Pradesh, reported in (2022) 1 SCC 341, wherein in Para 13, the Court has observed as under:-
“13. The oral evidence discloses that there was an indiscriminate attack by the accused on the deceased and the other injured eye-witnesses. As found by the Courts below, there is a contradiction between the oral testimony of the witnesses and the medical evidence. In Amar Singh v. State of Punjab (supra), this Court examined the point relating to inconsistencies between the oral evidence and the medical opinion. The medical report submitted therein established that there were only contusions, abrasions and fractures, but there was no incised wound on the left knee of the deceased as alleged by a witness. Therefore, the evidence of the witness was found to be totally inconsistent with the medical evidence and that would be sufficient to discredit the entire prosecution case.”
32. We have already observed that the ocular version of the incident is irreconcilable with the medical evidence on record and their presence too is doubtful, as well as the inconsistency remains unexplained by the prosecution. Once that be so, it cannot be said that prosecution has succeeded in proving its case beyond reasonable doubt. Consequently, the applicant is entitled to get the benefit of doubt.
33. In view of the discussions and deliberations held, these criminal appeals succeed and are allowed. The conviction and sentence of the accused appellants Smt. Santosh, Ramendra and Gaurav vide judgment and order dated 25.04.2019 passed by the Special Judge (E.C. Act)/ Additional District and Sessions Judge,Court Room No. 14, District Bulandshahar in Sessions Trial No. 226 of 2016 (State Vs. Ramendra and others), arising out of Case Crime No. 230 of 2015 under Sections 148, 302/149, 452 I.P.C., relating to Police Station Agauta, District Bulandshahr, is set aside and the accused-appellants are acquitted from the charges levelled against them.
34. The accused-appellants shall be released forthwith unless they are wanted in any other case subject to compliance of Section 437-A Cr.P.C.
35. The trial Court record along with the copy of this order be transmitted to the court concerned forthwith.
(Dr. Gautam Chowdhary,J.) (Ashwani Kumar Mishra,J.)
Order Date :-13.09.2024
S.Ali