Raj Kumar vs State of U.P.

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Surendra Vikram Singh Rathore, J.—Challenge in the instant criminal appeal is the judgment and order dated 09.03.2011 passed by Additional Sessions Judge, Court No. 5, Unnao in Sessions Trial No. 274 of 2010, arising out of Case Crime No. 3179 of 2009, Police Station Ganga Ghat, District Unnao, whereby the appellant Chandan was convicted for the offence under Section 308 IPC and was sentenced to undergo rigorous imprisonment for a period of three years and also with fine of Rs. 2,000/- with default stipulation of three months'' additional imprisonment. Along with the said sessions trial, Sessions Trial No. 568 of 2010 (State vs. Sonu), which also arose out of the same case crime number, was also tried but by the impugned judgment, co-accused Sonu was acquitted of the charges levelled against him. By the impugned judgment, another accused Raj Kumar was also convicted but during pendency of this appeal, Raj Kumar died and his appeal was abated vide order dated 10.12.2014. Now, only the case of present appellant Chandan is before this Court.

In this case, on the basis of written report submitted by the injured complainant Shambhu Dayal, a NCR was registered on 13.12.2008 at 08.45 AM alleging there in that the appellant Chandan, Raj Kumar and one unknown person used to cross the house of the complainant under intoxication and they used filthy language at that time, for which the complainant asked them not to do so. But he was abused and was also threatened by the accused persons. On 12.12.2008 in the night in between 7.30 - 8.00 PM the complainant was warming himself in front of the fire. One Jagdish and Rashid were also accompanying him. Meanwhile, Raj Kumar and Chandan reached there along with one unknown person and gave blows from backside on the head of the injured with lathi and danda and caused him injuries. The injured was medically examined at U.S.D. District Hospital, Unnao on 12.12.2008 at 11.00 PM and following injury was found on his head:-

"Incised wound 5.00 cm x 1/2 cm x muscle deep on left side top of head 10.00 cm above left ear. Fresh bleeding present. Duration was fresh. Nature of the injury was reported to be simple in nature."

This medical examination took place at U.S.D. District Hospital, Unnao, but thereafter the injured again went to PHC Shukla Ganj where his injury was again examined and only one stitch wound was reported and X-ray was advised. In the X-ray report, fracture of parietal bone was found. Thereafter, the complainant moved an application on 23.12.2008 for conversion of the case and on the basis of the same. On 26.12.2008, the case was converted under Section 308 IPC. The Investigating Officer inspected the place of occurrence and after concluding the investigation, charge sheet was filed.

The case of the defence was that the appellant was a peace loving man and the complainant side was also manned by ex-army personnel, who under intoxication raided the house of Raj Kumar where some altercation took place. While coming back, the injured fell down and

In order to prove its case, the prosecution has examined PW-1 Constable Suresh Singh, who has proved Chik Report and G.D. of this case as secondary evidence, PW-2 Complainant Shambhu Dayal the injured, PW-3 Jagdish-the witness mentioned in the first information report, PW-4 Dr. Tejveer Singh, who subsequently medically examined the injured at PHC, PW-5 SI Suresh Singh-the Investigating Officer of this case, PW-6 Dr. P.V.S. Chauhan, who initially medically examined the injured and PW-7 Dr. V.K. Sharma, who has conducted X-ray of the injured.

On behalf of the defence, D.W. -1 Indrapal, the then Village Pradhan, was examined.

After appreciating the evidence on record, the trial court convicted Raj Kumar and Chandan, as above, hence the instant appeal.

Submission of learned counsel for the appellant was that in this case according to the written information submitted by the injured himself, no specific role to any of the accused person was assigned. It was only reported that the accused persons caused injuries with lathi and danda from the backside. After medical examination, when the injury was found to have been caused by sharp edged weapon then the role of causing injury with ''Tabbal'' was assigned to accused Rajendra (since dead) and in order to falsely implicate the present appellant Chandan, the complainant developed his case by saying that on the same place, lathi injury was given by the present appellant. It is submitted that only one incised wound was found. This by itself shows that the implication of the appellant was false. The prosecution has not come with clean hands. It has further been submitted that as the complainant has come with a false case, therefore, the independent witness mentioned in the first information report has not supported the case of the prosecution and the Village Pradhan has also given evidence in support of the appellant, who has been examined on his behalf in his defence.

Learned AGA has submitted that in this case there is no illegality in the impugned judgment. The trial court has considered all the aspects and has rightly convicted the appellant.

In the instant case, the incident is alleged to have taken place on 12.12.2008 in between 7.30 to 8.00 PM. Thereafter, the injured went to the District Hospital, Unnao, and no first information report of this case was lodged. The first information report of this case was lodged on the next day. In the medical examination report, which was conducted on 12.12.2008, it has been specifically mentioned that the injury was an incised wound and even then in the first information report role of causing injury with lathi and danda was assigned to the accused persons and there was no whisper that any ''Tabbal'' or any sharp edged weapon was used by any of the accused persons. The injury was reported to be simple by the first doctor. The complainant had ample opportunity to inform the police at an earlier occasion but he failed to do so. When he could have gone to District Hospital, Unnao, then there was nothing to prevent him from going to the police station. Therefore, there is delay in lodging the first information report.

The law is settled on the point that mere delay in lodging the FIR cannot be a ground to throw away the entire prosecution case on this score alone. Where the prosecution has been able to explain the delay then such delay becomes immaterial. If the prosecution fails to explain the delay even then the entire prosecution story cannot be thrown out only on this sole ground. But, in that case, definitely, a duty is cast upon the court to scrutinize the prosecution evidence with utmost care and caution, because the delay gives chances of coming up of a coloured version and improvements.

Hon''ble Apex Court has considered the effect of delay in the F.I.R. and has held in the case of Kanhaiya Lal and Others Vs. State of Rajasthan, as under:-

"12. It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of Himichal Pradesh Vs. Gian Chand, , wherein a three-Judge Bench of this Court has expressed thus:- "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

In Ramdas and Others Vs. State of Maharashtra, , this Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution."

Delay in lodging the first information report is regarded to be an important factor only because due to delay chances of coming up of a coloured version creeps in. In the instant case, there is no dispute to the fact situation that a written report Ext. Ka-5 was submitted at the police station by the injured himself. There was absolutely no mention or averment that any sharp edged weapon was used. But during trial, PW-2 in his evidence developed a new story and has assigned the role of causing injury with ''Tabbal'' to accused Rajendra and it was alleged that on the same place, appellant Chandan also gave a blow of lathi and co-accused Sonu caused injuries with kicks and fists. PW-2 injured Shambhu Dayal has admitted in his cross examination in chief that whatever he has stated was written by the scribe of the report in the first information report and the same was read over to him. Since there were some mistakes, so he after correcting the same had signed it. But it is really strange that if injured was well aware of the fact that any sharp edged weapon was used that too by a particular accused then this fact must have been mentioned in his report. This defect gives rise to the only inference that because it was night, therefore, the injured could not recognize the weapon. If he was not in a position to recognize the weapon then the same light would not be sufficient for him to recognize the assailant.

According to the version of the first information report, PW-3 Jagdish was also warming himself by fire but he has not supported the case of the prosecution. He was cross examined on behalf of the State and the suggestion given to him shows that during investigation the case of the prosecution was that this witness had gone to the shop of the complainant to purchase some goods and thereafter he came near the fire which was near the shop of the complainant.

On behalf of the defence, D.W. -1 Indrapal was examined who has stated that the appellant and other accused persons are not gamblers and drinkers. Shambhu Dayal and his family members are muscle men. He has stated that on 12.12.2008 the appellant and other accused persons did not quarrel with the complainant. On the contrary, he has stated that Shambhu Dayal, under intoxication, had raided the house of Raj Kumar and had abused him. When Raj Kumar and his family members turned him out then he again along with his brother and nephews raided the house of Raj Kumar and abused them and also caused damage to his property. Hence, Raj Kumar went to the police station and moved an application. When this fact came to his notice, then he brought Raj Kumar back and made an effort to get the matter compromised. He has stated that complainant Shambhu Dayal has lodged false first information report simply to create a defence. This witness was cross examined and in cross examination, he has admitted that he was not present at the place of occurrence and he had heard about the incident which took place at the house of Raj Kumar. This witness has also stated that being Village Pradhan, Shambhu Dayal respects him and on being asked as to why you are giving evidence against him, he could not explain anything. Apart from it, the medical evidence also does not show that any crushed skin was found near the incised wound, which might have been caused by a lathi blow. Only one incised wound was found on the head of the injured with clear cut margins and the prosecution has developed its case at different stages and has made improvement by assigning the role of causing injury with ''Tabbal'' to Raj Kumar. So taking a cautious approach, it appears that only Raj Kumar was involved in this incident and the prosecution has falsely roped the other persons. Co-accused Chandan has already been acquitted by the court below as no injury caused by kicks and fists was found on the person of the injured and also the fact that he was not named in the first information report. The charge sheet submitted against Sonu shows that he was resident of the same village in which other accused persons namely Raj Kumar and Chandan were residing and the complainant Shambhu Dayal was also a resident of the same village. So it is hard to believe that the complainant was not aware of his identity. So this Court is of the considered view that the prosecution has developed story and the complainant has not come with clean hands. Only one injury was found on his person which, as per admitted case of the prosecution, the same was caused by Raj Kumar and therefore the case of the present appellant Chandan becomes doubtful. Accordingly, he becomes entitle for the benefit of doubt. Thus, the appeal deserves to be allowed.

The appeal is hereby allowed. Appellant Chandan is acquitted of the charges levelled against him. He be set at liberty. He is on bail. His bail bonds are cancelled and sureties discharged. Amount of fine, if any, deposited by the appellant shall be refunded to him.

Office is directed to communicate this order to the court concerned and to send back the lower court record.