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Kishori Lal vs Mahadeo And Ors. on 24 July, 1992

Allahabad High Court Kishori Lal vs Mahadeo And Ors. on 24 July, 1992Equivalent citations: 1993 CriLJ 1173 Author: J Semwal Bench: J Semwal

JUDGMENT

J.P. Semwal, J.

1. This appeal is directed against the judgment and order dated 21-4-1978, passed by the Judicial Magistrate, Mahoba, acquitting the respondents-accused under Sections 323, 504, 506/34 of the I.P.C.

2. The Appellant-Complainant Kishorilal filed complaint on 22nd July 1976, against the respondents-accused with the allegations that on 21-7-1976, at about 8.00 a.m., in village Mirtala, P. S. Mahoba, accused persons were blocking passage of the complainant and his family members by constructing wall on the “Kuliya”, lying between their houses. Smt. Indrani, mother of the complainant made protest whereupon, accused persons started hurling abuses on the complainant and his father and the accused Nos. 2 and 3 caused injuries to Smt. Indrani by attacking her with fists, kicks and Dandas. All the three accused persons also threatened to cause injury to the person and property of the complainant and his parents. The occurrence was witnessed by the witnesses Rajendra Prasad, Mathura and Ramesh. The complainant lodged report of the occurrence at P. S. Mahoba on 21-7-1976 at 12.15 p.m. and the injuries of Smt. Indrani were got examined at Male Hospital Mahoba at 5.00 p.m. According to the complainant, incident had also taken place prior to 21-7-1976, when the accused persons had placed Khapra etc. on the aforementioned ‘Koliya’ due to which the flow of water was diverted towards the house of complainant. When Smt. Indrani, mother of the complainant, wanted to remove Khapra, the three accused persons abused Smt. Indrani and accused No. 2 Smt. Chhikharawali and accused No. 3 Mool Chand, attacked her with Danda.

3. After the complaint was filed, the learned Magistrate, on the basis of statements under Sections 200 and 202 Cr.P.C. and other evidences on record found that prima facie case under Sections 323, 504, 506 Cr. P.C. was made out and he, accordingly, summoned the accused persons

4. The accused denied the complainant’s allegations. The complainant, in support of his case, examined himself as P.W. 1, Sri Rajendra Singh P.W. 2, Ramesh Chandra P.W. 3, Smt. Indrani P.W. 4 constable Shyam Narayan Ojha P.W. 5 and Dr. K. N. Misra P.W. 6. The accused persons, in their statements under Section 313 Cr.P.C. pleaded that witnesses had given false evidence due to enmity.

5. In defence, the accused persons filed some documents on 21-3-1979.

6. The learned Magistrate, after considering evidence and material on record, came to the conclusion that the prosecution witnesses were not independent witnesses and they were in enmity with the accused persons. According to the learned Magistrate, the testimony of the prosecution witnesses does not warrant the conviction of the accused persons and gave benefit of doubt to the accused and acquitted them.

7. Aggrieved by the order of acquittal, the appellant-complainant has preferred this appeal for which leave was granted under Section 378(3) Cr.P.C.

8. I have heard the learned counsel for the respondents in the absence of learned counsel for the appellant as none appeared in spite of adequate opportunity having been given to the appellant by listing the appeal several times. It appears that appellant is not interested any more in this appeal which was filed as far back in the year 1978. Even if the appellant is absent, Criminal appeal cannot be dismissed for default of appearance of the appellants or his counsel. It has to be disposed of on merits see AIR 1971 SC 1606 : 1971 Cri LJ 1177, S. D. Pandey v. State of Bihar.

9. The appeal is being decided on merits. The appellant has challenged the order of acquittal on the ground that the Trial Court has not looked into the merits of evidence and that the prosecution has proved his case beyond any shadow of doubt.

10. It is a matter of regret that the lower Court has not discussed the evidence on record and has passed sketchy judgment. This court has, in appeal, got full power to review, at large, evidence upon which the order of acquittal was founded and to reach conclusion whether the finding of the Trial Court is perverse or unreasonable.

11. In this appeal this court, vide order dated 25-10-1990, summoned the charges framed against the accused which were not on record. The report of the Chief Judicial Magistrate, Hamirpur, dated 5-1-1991, goes to show that no charge was available and it appears that by inadvertence, there is mention of charge having been framed in the judgment of the court below. It is further mentioned that offences under Sections 504, 323, 506/34 I.P.C. are triable as summons case and no charge is framed thereunder. The charge is only framed under Section 506(2) I.P.C. A perusal of record of the lower Court, goes to show that on 19-10-1976 the accused were summoned under Sections 323, 504, 506 I.P.C. on 1-4-1977, the statements of the complainant-Kishori Lal P.W. 1, Sri Rajendra Prasad, P.W. 2 and Ramesh Chandra P.W. 3 were recorded and they were also partly cross-examined by the accused. On 19-9-1977, the statements of the accused were taken and 1-12-1977, was fixed for evidence. On 1-12-1977, P.W. 1, P.W. 2 and P.W. 3, were further cross-examined. The evidence of P.W. 4 Smt. Indrani, P.W. 5 constable Shyam Narayan where taken on 19-12-1977 and P.W. 6 Dr. K. N. Misra on 1-11-1978.

12. It, thus, appears from the record that the learned Magistrate followed the procedure of warrant case up to 19-9-1977. Thereafter, he followed the procedure of summons case as he did not frame any formal charge in the case. No doubt, the Chief Judicial Magistrate has, in his report mentioned that no charge is framed under Sections 323, 504 and 506 I.P.C. and that only under Section 506(2) I.P.C. formal charge is framed. If it was so, the learned Magistrate should have made mention in the order-sheet accordingly. It is, however, to be seen as to what would be the consequence of irregularity. The legal position is that if a summons case is tried as warrant case, there is no illegality and it is curable irregularity (see Gopal Das Singh v. State of Assam, AIR 1961 SC 986 : (1961 (2) Cri LJ 39).

13. Summons case can be tried as a warrant case if the Magistrate is of the opinion that in the interest of justice it should be done. Similarly, if a case is tried as a warrant case but it is found that it should have proceeded under the summons procedure, the Magistrate can use this procedure in the midst of the case. The Magistrate, however, should indicate this by passing an order in the Order-sheet. This has not been done by the learned Magistrate in this case. This omission, however, is not fatal. As already stated, if a summons case is tried as a warrant case, there is no illegality and it is a curable irregularity.

14. From perusal of the evidence, it is now evident that the accused were summoned under Sections 323, 504, 506 Part I, I.P.C. and not under Part II of the Section 506 I.P.C.

15. As regards, the threat to life and property of the complainant and his parents there is no evidence, except the bold statement of Kishori Lal, Sri Ramesh Chandra in his statement-in-chief, deposed that the accused were quarrelling with the wife of Bhawani. Mahadev was abusing Bhawani. Kishori Lal did not abuse. Mool Chand and Chhikhrawali attacked mother of Kishori Lal with Dandas. He categorically deposed that these three accused did not make any other utterance. It is, thus, quite clear from the evidence that the threat to life and property of the complainant and his parents, was not real one and it is not proved by the evidence at all that there was any real threat.

16. For an offence under Part II of Section 506, I.P.C. threat should be real one which is wanting in this case. This is the reason that chick report of non-cognizable offence was scribed at the police station, vide Exhibit-Ka-1, and the learned Magistrate did not summon accused under Part II of said section and did not frame formal charge.

17. The evidence goes to show that the allegations of threat by the accused to the person and property of the complainant and his parents was not real one and there is no iota of evidence in support of this allegation. Since the case of the complainant ultimately did not fall under Part II of Section 506, I.P.C. hence no illegality has been committed in proceeding with the case as summons case at later stage. Framing of formal charge is not mandatory in a summons case and substance of the accusation has to be explained to the accused which has been done in this case on 19-9-1977. Hence, no illegality has been committed and the appeal can be disposed of on merits.

18. In an appeal against acquittal, the appellate Court has power to review the evidence upon which the order of acquittal is founded. The principles laid down by the Privy Council and Supreme Court afford a correct guide for the appellate Court’s approach to a case in disposing of an appeal against acquittal. Section 378, Cr.P.C. gives the High Court full power to review at large the evidence upon which the order of acquittal was founded and to reach its own conclusion upon that evidence either by reviewing the order of acquittal or disposing of the same otherwise, as facts therein warrant. In other words, the High Court is vested with the preliminary powers to go through the entire evidence and to come to its own conclusion as warranted by the facts of the case concerned but, of course, subject to certain guidelines laid down by the judicial pronouncements. In order to succeed, the appellant has to show that the trial Court has given verdict of acquittal on untenable reasons and in disregard of evidence. For an appeal against acquittal to succeed, there must be substantial and compelling reasons for the appellate Court to come to the conclusion different from that of the trial Court. It is settled view that if in an appeal against acquittal both the views, namely, one leading to conviction and other to acquittal are reasonably possible, the verdict of acquittal is not to be disturbed.

19. In an appeal against acquittal, it is not enough for the High Court to take a different view of the evidence, there must also be susbtantial and compelling reasons for holding that the Court below was wrong. The Court of appeal will interfere only if it is proved without any doubt not only that the accused person is guilty but that he has been acquitted on unreasonable ground. The Supreme Court has held that the reasons for reversing a judgment of acquittal should be cogent and if two views are reasonably possible, the appellate Court should be slow in interfering with the judgment of the Trial Court even if it is possible for it to take a different view after a process of laborious reasoning (See AIR 1983 SC 810 : (1983 Cri LJ 1105) Ramji Surya v. State of Maharashtra).

20. Let us now review the evidence on record. The accused persons have stated that witnesses gave evidence due to enmity. A suggestion has been put that the accused have been falsely implicated at the instance of Rajendra Prasad. Rajendra Prasad P.W. 2, is the person who has received gunshot injury and in which case Mahadev is accused. Rajendra Prasad P.W. 2 and Ramesh Chandra P.W. 3 are said to be present at the time of occurrence on the Chabutara but they did not come to the place of occurrence. The house of Ramesh Chandra is at a distance of one furlong and house of witness Rajendra Prasad is also at a considerable distance though his house is visible from the house of the complainant. These both witnesses had not come to the place of occurrence nor they intervened. According to Smt. Indrani P.W. 4, she had enquired from those two witnesses regarding witnessing the incident. According to her, Rajendra and Ramesh were standing on the Chabutra and she had asked them whether they had seen her being beaten which they answered affirmatively.

21. No doubt, Kishori Lal Complainant has denied about the litigation and enmity but it is against the facts, he has admitted that Rajendra had received gun shot injury and in that incident a report was lodged against Mahadev (accused No. 1) and others. He showed his ignorance that his father Bhawanideen was witness against Mahadev. Rajendra Prasad P.W. 2, who received gunshot injury, has also shown his ignorance in that regard. Sri Ramesh P.W. 3 however, deposed that in the occurrence in which Rajendra Prasad received gunshot injury and Mahadev is accused, he is witness on behalf of Rajendra Prasad. It would thus appear that these two witnesses are not independent witnesses.

22. Even if Rajendra Prasad P.W. 2 and Ramesh Chandra P.W. 3 were inimical to accused, this by itself, however, is not sufficient ground for rejecting their testimony as has been held by Supreme Court in Raman Kalia v. State of Gujarat (reported in AIR 1979 SC 1261 : 1979 Cri LJ 1074.

Non-examination of independent witnesses or neighbours residing near the place of occurrence is no ground for rejecting the evidence of eye-witnesses (see Amar Singh v. State of Haryana, AIR 1973 SC 2221 : 1973 Cri LJ 1409.

Even if the testimony of Rajendra Prasad P.W. 2 and Ramesh Chandra P.W. 3 is rejected, even then the evidence of the complainant Kishori Lal P.W. 1 and injured witness Smt. Indrani P.W. 4 has to be carefully examined to find out whether any credence can be placed thereon and whether the prosecution has proved its case beyond reasonable doubt.

Smt. Indrani P.W. 4, who is alleged to have been beaten by the accused persons and received injuries, did not raise alarm nor witnesses Rajendra Prasad and Ramesh Chandra came to the place of occurrence. The occurrence had taken place in the morning at 8.00 a.m. but no witness had come to the scene of the occurrence. Sri Rajendra Prasad P.W. 2 and Ramesh Chandra P.W. 3, who have been produced, also did not come to the spot nor intervened.

This incident had taken place on 21st July, 1976. Similar incident had taken place one day earlier as deposed to by Sri Kishori Lal P.W. 1. The report of the incident of 21st July, 1976, was lodged at police station Mahoba at 12.00 p.m. vide Exhibit ka-1. This report was lodged by Kishori Lal P.W.-1, but Smt. Indrani P.W. 4 deposed that she had dictated the report at the police station. According to her, she had become unconscious on the spot. If it was so, it does not stand to reason that she would be able to dictate the report. Regarding the incident which had taken place one day earlier, Smt. Indrani P.W. 4 first replied in negative but immediately changed her version and stated that incident had taken place one day earlier at 12.00 noon and at that time her son and husband were not present. In that earlier incident also, Smt. Indrani P.W. 4, is alleged to have been attacked by Smt. Chhikarawali and Mool Chand by Dandas but no report of that incident was lodged. No explanation, whatsoever, has been given in that regard.

23. Regarding the role of the accused persons there is no consistency in the complaint and the evidence. It is alleged in the complaint as well as the report Exhibit-ka-1 that Smt. Chhikarawali and Mool Chand had attacked with Dandas. In her evidence Smt. Indrani P.W. 4 deposed that the accused Mool Chand attacked her with kicks and fists while Smt. Chhikarawali attacked her with Dandas. The complainant Kishori Lal P.W. 1 deposed that Mool Chand was not wielding anything and Mahadev had not beaten his mother. Ramesh Chandra P.W. 3 also deposed that Chhikarawali had attacked with Danda and Mool Chand beat her with fists and slaps. According to Kishori Lal, P.W. 1, Mool Chand had cought hold of her and had attacked her with kicks and fists. This improvement was made during trial. Specific case of the complainant was that Smt. Chhikarawali and Mool Chand had attacked with Danda but during evidence it was stated that Mool Chand was not wielding anything. There is thus inconsistency and infirmity regarding the role of the accused persons in the occurrence. The evidence belies the complaint allegations which is the basis of the prosecution of the respondents-accused.

24. There is also inconsistency and infirmity in the manner the occurrence took place. Smt. Indrani had different story to tell which is not in consonance with the case alleged in the complaint. According to her, the accused were stopped by her son and husband also from constructing the wail. When she was attacked by Danda her husband and son saved her. She has stated that Danda was brought from inside the house and Chhikarawali had given three blows of Danda which hit her back. There is serious infirmity regarding the weapon of offence itself. The complainant Kishori Lal P.W. 1 deposed during cross-examination that Chhikarawali was wielding Khatua. This is in contradiction to the case taken up in the complaint. The change of weapon during evidence casts serious doubt on the prosecution case.

25. No doubt, Smt. Indrani P.W. 4 is the victim of the occurrence and being injured witness her testimony can be relied upon provided it is free from doubt and credence can be placed on it. It is quite clear from the testimony of Smt. Indrani P.W. 4 that she has changed her statement easily at her own convenience. A witness who prevaricates so easily does not inspire any confidence. No implicit reliance can be placed on her statement. She received one contusion on her back and two abrasions, vide exhibit-ka-2 Injury Report. The occurrence had taken place on 21-7-1976 at 8.00 A.M. but the injuries of Smt. Indrani were examined at 5.00 P.M. by Dr. K.N. Misra. It was argued by the learned counsel for the respondents that there was delay in examination of injuries and delay has not been explained. The delay by itself will not be fatal provided the prosecution proves its case beyond shadow of doubt.

26. The medical evidence also is not consistent with the case of prosecution. Though according to Dr. K.N. Misra P.W. 6, injury No. 1 could have been received by Danda but this injury was not possible even if the entire portion of inches of Khatua would hit the body. He, however, categorically deposed that injury Nos. 2 and 3 could not have been received by fists and kicks. If Smt. Indrani actually received three blows of Danda as deposed to by her, the nature of injury No. 1 would have been different. It is thus quite evident that the medical evidence is also not consistent with the prosecution case. The testimony of the complainant Kishori Lal P.W. 1 and Smt. Indrani P.W. 4 suffer from serious infirmities and inconsistencies which cannot be ignored. The ocular evidence of Sri Rajendra Prasad and Sri Ramesh Chand does not go to make any improvement to the prosecution case.

27. A review of the evidence as discussed above, goes to show that the evidence of the prosecution is replete with inconsistencies, infirmities and no implicit reliance can be placed on the testimony of the complainant and his witnesses.

28. The complainant has not been able to prove his case to the hilt and beyond reasonable doubt. There is, thus, no perversity in the findings of the lower Court. No doubt the lower Court has not discussed the evidence at all, but after considering the evidence this Court comes to the conclusion that the order of acquittal is not perverse or unreasonable. It is, thus, not open to this Court in the circumstances of the case to reverse the order of the acquittal even if it is possible to take different view (see AIR 1983 SC 360 Koraghasi v. State of Orissa).

29. For the reasons given above, I do not find any substantial and compelling reasons to come to a conclusion different from that of the Trial Court on the basis of evidence adduced by the complainant.

30. The present appeal, thus, fails and is liable to be dismissed.

31. Accordingly, the present appeal is hereby dismissed.

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