Phudiki alias Badlu and Others vs State of U.P.

Naseemuddin, J.—This appeal has been filed by Phudiki alias Badlu S/o Balai, Jhinkau S/o Balai Kahar, Barkau S/o Phudiki and Kedar S/o Bhagelu against the judgment and order dated 30.11.1983 passed by Sri S. C. Srivastava, the then IInd Additional Sessions Judge, Sultanpur in S.T. No. 102 of 1983 whereby the Appellants were convicted for an offence punishable under Sections 308/34, 325/34 and 323/34, Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for a term of six years, three years and six months respectively. All the sentences were ordered to run concurrently.

Learned Counsel for the Appellants and counsel for the State were heard.

On 16.9.1981 at about 15.20 hours, P.W. 1 Ram Prasad lodged a report with police-station Dostpur, district Sultanpur against four named Appellants alleging that about 9-10 a.m., Appellants armed with lathis started inflicting lathi blows on his son P.W. 2 Ram Ujagir. That on his cries, he rushed to rescue his son but he was also beaten by the four Appellants. That the occurrence was witnessed by Lalji Singh (P.W. 3), Ram Sumer Yadav and Ranjit Singh who saved the two persons. That the Marha and Jagat of the well belonging to P.W. 1 Ram Prasad was destroyed. On the basis of this F.I.R. Ext. Ka-1 Chick report Ext. Ka-5 was prepared and a case was registered. The injured Ram Prasad and Ram Ujagir were examined at the Primary Health Centre, Dostpur medically. After completion of investigation charge-sheet was submitted. The Appellants were charged with the above offences. The prosecution produced P.W. 1 Ram Prasad, P.W. 2 Ram Ujagir and P.W. 3 Lalji Singh on the factum, of occurrence to prove the case and also examined P.W. 4 Raja Ram Upadhyaya Investigating Officer, P.W. 5 Dr. A. C. Srivastava and P.W. 6 Dr. O. P. Sharma to prove the injuries. In defence various papers were filed. The case taken up by the Appellants before the trial court is also contained in the report which they had lodged at 13.30 hours on the same day in respect of this occurrence which was also alleged to have taken place in this F.I.R. at 10 a.m. In this F.I.R. (Ext. Kha-4) it was alleged by Phudiki Appellant that Ram Prasad, Ram Ujagir and other two named persons had assaulted the Appellants and others while Chakbandi Qanungo had come for the purpose of Partal and that the occurrence had taken place at the instance of P. Ws. 1 and 2, etc. when the Qanungo had uttered words in favour of the Appellants regarding the possession and title of property over which the occurrence is said to have take place. They also filed the injury reports and examined four witnesses to prove the injuries and their case. The trial court discussed the evidence of the two sides and concluded that the possession over the disputed property was that of Ram Prasad and others and, therefore, the occurrence had taken place at the instance of the Appellants and so held them guilty and convicted and sentenced as above. Feeling aggrieved present appeal has been filed.

In the present case, during the trial, it was undisputed that Phudiki and Jhinkau had received injuries during the occurrence and that Ram Prasad and Ram Ujagir had also received injuries. The injury reports on record have been proved by the witnesses on the respective sides. Learned Counsel for the Appellants took the Court through the entire material on record which was adduced during the trial on behalf of the two sides and started particularly from the appears which were not in dispute. The main dispute as has come out during the trial with respect to the land which these rival parties claim to themselves. However, when Ram Prasad was examined by the prosecution on oath he tried to avoid the disclosure of the earlier litigation in between a third person on one side and the present parties on the other side. In Original Suit No. 458 of 1955 before the Court of Munsif it was admitted by these parties, complainant as well as the Appellants that the disputed plot Nos. 2152 and 2153 were entered in the revenue papers in the name of the ancestors of the Appellants (vide Ext. Kha-7), written statement read with the plaint (Exts. Kha-6 and Kha-9). The Chakbandi Adhikari in his judgment and order dated 11.7.1983 (Ext. Ka-10) also had found that these properties were standing in the revenue papers in the name of the Appellants'' ancestors. P.W. 3 Lalji also made a statement before the court below in the examination-in-chief itself that when Partal was going on by the Qanungo then Ram Prasad insisted that his name be entered in this property. This statement itself shows that Ram Prasad''s name was not existing on this property which was being alleged to be his abadi by him. It is also in evidence that the Qanungo had also given his view that the property belonged to the Appellant. Ram Prasad (P.W. 1) was silent about the Partal which was the immediate cause of the dispute (in the examination-in-chief) but he had to admit the factum of Partal and the immediate cause of the occurrence. In similar manner, Ram Ujagir (P.W. 2) and Lalji (P.W. 3) also stated about the cause of the incident. Regarding the earlier litigation in the chakbandi and civil court about this land, the star witness P.W. 1 made evasive reply saying that he did not remember about the same. However, these papers are on record. There is definite allegation of the Appellants in their F.I.R. about the immediate cause, viz., the presence of the Qanungo and the observations of the Qanungo and the prayer of Ram Prasad for entering his name over the property which was the bone of contention in between the parties. Scrupulously Ram Prasad did not say anything about the injuries which had been suffered by Jhinkau and Phudiki. He is completely silent over the cause of injuries to these persons. However, in the evidence he has come out clearly with the case that he had also used his lathi in self-defence. In the normal circumstances, the subsequent explanation of the injuries having been suffered by the accused side could have been taken into consideration and could have been held a sufficient explanation but in the instant case, the non-mentioning of the real cause of the dispute, viz., the observation of the Qanungo, is a thing which shows and proves that all is not well with the allegation of the complainant and the genesis of the occurrence is being suppressed and is not being proved by the prosecution. The two sides suffered injuries and the prosecution owed an explanation in the F.I.R. itself regarding the injuries of Appellants Phudiki alias Badlu and Jhinkau. These injuries having not been explained in the F.I.R. itself, in the facts and circumstances of the case proved beyond any doubt that the prosecution has suppressed the real facts and have suppressed genesis of the occurrence. The argument of the learned Counsel for the Appellants to the effect that the prosecution had failed to prove the genesis of the occurrence carries weight and has got force.

The findings of the learned trial court about the possession of the complainant side over the property have been assailed by the learned Counsel on the basis of the record of the earlier civil litigation and the proceedings of the consolidation case. In my opinion, the trial court gave perverse findings in respect of possession of a particular party inasmuch as he totally ignored the written statement filed in the above noted civil suit in which the possession of the Appellants had been admitted by the complainant himself and the trial court also totally ignored judgment and order of the Consolidation Officer in which a clear cut observation and finding was given in respect of the entries in favour of the Appellants'' predecessors regarding their possession and entry thereof in the records of the rights and other revenue papers. The basic mistake starts from this perverse finding. On the basis of this finding, the learned Sessions Judge came to the conclusion that the Appellants were the assailants and the aggressors. The trial court also ignored the fact that the complainant had deliberately suppressed the main points about the genesis of occurrence and had not explained the injuries of the Appellants in the F.I.R. The complainant had come with dirty hands and had suppressed the material facts. Under these circumstances, the lodging of the F.I.R., delay of more than five hours by the complainant in a case where the Appellants had lodged the F.I.R. about two hours earlier than the lodging of the F.I.R. of the complainant becomes material. In view of the facts and circumstances of the present case, it can safely be held that the complainant had lodged the F.I.R. with delay and the F.I.R. lost its value as a corroborative piece of evidence. This lodging of the F.I.R. with delay is also fatal to the case of prosecution particularly when the case of the Appellants finds corroboration from the evidence of the prosecution itself particularly when the report lodged by the Appellants was immediate and without delay. In any case, the prosecution had badly failed to prove the genesis of the occurrence and had badly failed to prove the case as against the Appellants. The trial court should not have held the Appellants guilty and should not have convicted and sentenced them. The Appellants are, therefore, held not guilty of the charges framed against them and they are entitled to clear acquittal and shall be acquitted and their appeal shall be allowed.

The appeal is allowed. Conviction and sentence under appeal are set aside. Appellants are acquitted. The Appellants are on bail. Their bail bonds are cancelled and their sureties are discharged. They need not surrender to their bail bonds.