Allowed

Krishna @ Krishna Koiri and Others v. State of U.P.

Allahabad HC2 Nov 2018CRLA/5487/2003

Case brief

AI extract

What is this about?

This judgment sets aside the conviction and acquits appellants in an arson case due to serious contradictions in prosecution testimony, lack of burnt item list, and evidence showing the FIR was ante-dated following police consultation.

What did the court decide?

Judgment and order of conviction set aside; appellants acquitted and released forthwith unless wanted for other cases.

Krishna @ Krishna Koiri and Others Vs State of U.P. — Cheating and Forgery | Allahabad HC (2018)

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Court No. - 42

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AFR
Case :- CRIMINAL APPEAL No. - 5487 of 2003

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Appellant :- Krishna @ Krishna Koiri & Others
Respondent :- State Of U.P.
Counsel for Appellant :- Ashok Kumar
Srivastava,Rahul Jain
Counsel for Respondent :- A.G.A.,A.K.
Shukla,Mukesh Kumar Pandey,S.N. Singh

¶5

Hon'ble Arvind Kumar Mishra-I,J.

¶6

By way of instant appeal, challenge has been
made to the validity and sustainability of the
judgment and order of conviction dated 01.11.2003
passed by the Additional Sessions Judge, Fast
Track Court, Sonbhadra, in Session Trial No.37 of
2003 State Vs. Krishna and others, arising out of
Case Crime No.106 of 2003 under Sections 436,
147, 427 I.P.C., Police Station- Chopan,
District- Sonbhadra, whereby the accused-
appellants have been sentenced to undergo ten
years rigorous imprisonment coupled with fine
Rs.2000/- under Section 436 I.P.C., one year
rigorous imprisonment under Section 147 I.P.C.
and one year rigorous imprisonment under Section
427 I.P.C., in default of payment of fine, they
will have to undergo additional one year
imprisonment.

¶7

Relevant to mention that appellant no.3 Ram
Sunder has died during pendency of this appeal,
therefore, the appeal qua appellant no.3 Ram
Sunder stood abated on 29.10.2018.

¶8

Heard Sri Ashok Kumar Srivastava, learned

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counsel for appellant nos.1 and 2, Sri Mukesh
Kumar Pandey, learned counsel for the informant,
Sri Om Narain Tripathi, learned A.G.A. assisted
by Sri Ajay Kumar Singh, learned brief holder for
the State and perused the record.

¶11

In the background of this case, there appears
lodging of the report at Police Station Chopan
District Sonbhadra on 22.02.2003 at 7:10 p.m.
by the informant Raj Narain Giri son of Basantu
Giri, resident of village Pakari, Police Station
Chopan, District Sonbadhra regarding some
incident of arson committed by the accused-
appellants around 8:30 a.m. the very same day
with description that the information of arson
was given to the informant by his nephew Kripa
Shanker Giri son of Deo Narain Giri on 22.02.2003
at Chopan that the accused-appellants in company
with ten unknown persons, who are not known to
the informant's nephew, suddenly appeared at the
house of the informant and his brother Deo Narain
Giri, while his nephews were working in the
field, caused arson around 8:30 a.m. (on
22.02.2003) due to which the houses were badly
burnt. While fleeing away from the scene, the
miscreants threatened the entire 'Giri' family
that they will not be spared if they tried to
reside in the village, and with a view to expel
them out of the village, they (miscreants) have
committed the crime.

¶12

It was also described in the very beginning
of the first information report that last year on
05.07.2002, nexalites in collusion with certain

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villagers of his village had blown house of the
informant by dynamite due to which tractor,
motorcycle and house hold goods were burnt. The
informant and his brother carry on agricultural
work at the protection of the police.

¶15

The report was lodged at Police Station
Chopan around 7:10 p.m. on 22.02.2003 and
relevant entries regarding the same were made in
the general diary concerned of the aforesaid date
and time at the aforesaid police station.

¶16

The investigation ensued and the same was
taken over by Shashindra Prasad Shukla PW-5 who
after the case was lodged took note of the
contents of the first information report and the
relevant entries and recorded statement of the
informant and the prosecution witnesses and
prepared site plan Ext. Ka-4 and after completing
the investigation filed charge sheet Ext. Ka-5.

¶17

Consequent thereupon, the case was committed
to the court of Sessions where the accused were
heard on the point of charge. Charges under
Sections 147, 427, 436 I.P.C. were framed and
explained to the accused who abjured charges and
claimed to be tried, whereupon, in order to prove
guilt of the accused, the prosecution examined as
many as five witnesses namely Raj Narain Giri PW-
1 who is the informant, however, he has not seen
the incident. Uma Shanker Giri and Kripa Shanker
PW-2 and PW-3 are witnesses of fact, they have
described about the incident. Sunil Kumar Ojha
PW-4 is the Constable who noted contents of the
written report and lodged the case. Shashindra

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Prasad Shukla PW-5 is the Investigating Officer.
Except as above, no other testimony was adduced
by the prosecution.

¶20

Thereafter, evidence for the prosecution was
closed and statement of the accused was recorded
u/s 313 Cr.P.C., wherein, they claimed to have
been falsely implicated by the informant in
collusion with the police in this case. No
evidence, whatsoever, was led by the defence.

¶21

The learned Additional Sessions Judge, Fast
Track Court, Sonbhadra, after appraisal of facts
and vetting merit of the case and evaluation of
the evidence on record, returned aforesaid
finding of conviction and sentenced the
appellants to undergo ten years rigorous
imprisonment coupled with fine Rs.2000/- under
Section 436 I.P.C., one year rigorous
imprisonment under Section 147 I.P.C. and one

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year rigorous imprisonment under Section 427
I.P.C., in default of payment of fine, they will
have to undergo additional one year imprisonment.

¶23

Feeling aggrieved, the accused-appellants
have come up before this Court.

¶24

It has been contended on behalf of the
accused-appellants that the entire facts and
circumstances evinces that the informant was
inimical towards the accused-appellants and he is
himself a notorious person and he exploits the
poor and helpless persons of the village and
tries to establish his supremacy over the people
residing in the village. There is no list of
burnt items, whereas, the first information

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report mentions that list of the burnt items
shall be supplied later on. No memo, whatsoever,
of any burnt item was prepared. The first
information report is ante timed.

¶27

It has been added that as per testimony of
the prosecution witnesses of fact, the Station
House Officer, Police Station Chopan was present
after the occurrence in the afternoon of
22.02.2003 and was also present at the time of
lodging of the first information report and
Daroga Ji noted down the contents and then the
first information report was lodged, that too
after almost two hours of the actual time shown
when the first information report was lodged at
7:10 p.m. The testimony is replete with the
description that Uma Shanker Giri PW-2 arrived at
the police station around 7:30 p.m. on 22.02.2003
thereafter the report was written in his presence

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at the police station and Daroga Ji was writing
the report and Raj Narain Giri PW-1 appended his
signature on it and all these took place after
one and half hour after 7:30 p.m. Then under
circumstances, lodging of the first information
report at 7:10 p.m. on 22.02.2003 becomes self-
contradictory and ante timed.

¶29

It has been further added that theory of
arson has been developed by the informant,
whereas, no such incident took place. Further,
theory of gun was introduced and causing of fire
by use of pipeline rod is an improvement and is
in contrast to the statement recorded by the
Investigating Officer.

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Apart from above, testimony of both the
witnesses of fact PW-2 and PW-3 is full of
improvement and embellishments besides being
contradictory on material particulars. No arson
at the house of the informant ever took place on
22.02.2003 as described in the first information
report and this fact has been verified by Bandhu,
Pradhan of the village and he has given in
writing that no such incident as the present one
regarding arson being caused at the house of the
informant and his brother ever took place and the
informant himself is a notorious person and tries
to exploit the poor men of the village. Evidence
of the eye-witnesses does not inspire confidence
and it is full of inherent contradictions.

¶32

While retorting to aforesaid contention,
learned AGA has submitted that in this case,
prosecution witnesses of fact namely PW-2 and PW-
3 have categorically stated about the incident
and have described the details of the incident
which leaves no room for any doubt. The
contradictions, whatever, occurring in the
testimony of the prosecution witnesses are
natural and there is no material contradiction.
Charges have been proved satisfactorily beyond
reasonable doubt. The learned trial court while
appreciating merit of the case was impressed by
consistency of the aforesaid facts and proof of
the same, therefore, rightly recorded conviction
and awarded just sentence against the appellants.

¶33

Also considered the rival submissions.

¶34

In this case, bare perusal of the report Ext.

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Ka-1, it makes explicit that the informant Raj
Narain Giri PW-1 lodged the first information
report with the description that in the year 2002
on 5th July, some nexalites caused arson with the
conspiracy of co-villagers of the informant and
the house of the informant wasblown through
dynamite due to which all the house hold goods
along with tractor and motorcycle of the
informant was reduced to ashes. Thereafter, with
the help of the local police, the informant and
his brother could engage themselves in
agricultural work. Today, on 22.02.2003 the
informant's nephew Kripa Shanker Giri son of Deo
Narain Giri informed him at Chopan that at 8:30
a.m. when his nephew was working in the field, he
saw the present accused-appellants in company
with a number of others including ten unknown
persons, who suddenly appeared and caused arson
in his house as well as house of his brother Deo
Narain due to which much destruction was caused
to the houses. While leaving the place of
occurrence, the miscreants extended threat to the
entire 'GIRI' family with dire consequences and
said that they would not allow the informant and
his family to live in the village.

¶37

It has also been described in the ending part
of the report that with a view to expel the
informant and his family from the village, the
incident was caused. List of burnt items/goods
shall be furnished later on. After getting the
information, the informant had visited his home,
thereafter he has come to report about the

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incident.

¶40

If this description is assumed to be
absolutely correct then obviously in the entire
testimony of three witnesses of fact PW-1, PW-2
and PW-3 namely Raj Narain Giri, Uma Shanker Giri
and Kripa Shanker Giri, there is no description
of any list of the burnt items/goods. Only
sketchy reference of burnt cycle in the shape of
skeleton has been made by the witnesses.
Surprisingly, no memo of any burnt article was
ever prepared by the Investigating Officer. The
first information report has been supported by
PW-1, informant Raj Narain Giri that at the time
of the incident, his nephews were working in the
field, whereas, testimony of their nephews PW-2
and PW-3 is indicative of fact that at that point
of time, they were not working in the field but
were inside their house when the miscreants
arrived on the spot, therefore, on this aspect of
whereabouts of nephews of the informant at the
actual time when the miscreants arrived on the
scene of occurrence is contradictory. There
appears material contradiction on other points as
well which are noticed on appreciation of
testimony vis-a-vis facts and circumstances of
this case.

¶41

The very manner of causing arson has not been
described in the first information report nor any
such manner has been stated in the statement of
the prosecution witnesses recorded under Section
161 Cr.P.C. but a theory has been developed at
the time of recording of the testimony of the

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prosecution witnesses of fact that arson was
caused by holding pipeline rods with cloth tied
to its top and after sprinkling kerosene oil, lit
fire to it.

¶44

The informant Raj Narain Giri PW-1 says that
pipeline rod was about 20 feet in length,
whereas, Uma Shanker Giri PW-3 says that there
were as many as 12 pipes whereby all the
miscreants were causing arson. Not only this, PW-
2 and PW-3 have also developed theory that
certain miscreants were possessing guns and
rifles in their hands at the time of the
incident, whereas, no such statement was ever
given by them to the Investigating Officer. The
report does not contain any such description
regarding guns.

¶45

However, the entirety of the case becomes
highly doubtful in view of the fact that
testimony of Kripa Shanker Giri PW-3 is
indicative of fact that after the incident,
Station House Officer of Police Station Chopan
had visited the spot around 1:00 p.m. to 1:30
p.m. in the afternoon (of 22.02.2003) and the
police force went back to the police station
around 6:30 p.m. to 7:00 p.m. and it is
noticeable that the first information report was
lodged after 10 minutes of conversation with
Daroga Ji and at that point of time, it was about
7:00 p.m., thus deliberation with the police
prior to the lodging of the first information
report is a proved fact.

¶46

Kripa Shanker Giri PW-3 has testified to fact

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that the report was lodged at 7:10 p.m. on the
day of the occurrence and this fact stands
corroborated by testimony of Constable Sunil
Kumar Ojha PW-4 who noted contents of the written
report in the Check F.I.R. and made relevant
entry in the concerned general diary on
22.02.2003 at Police Station Chopan.

¶49

Now the point is that prior to the lodging of
the first information report, presence of the
police on the spot is no denying fact. It has
emerged in the cross examination of Uma Shanker
Giri PW-2 that the report was lodged in his
presence at the police station and he arrived at
the police station around 7:30 p.m. on the day of
the occurrence and the report was lodged
thereafter at a gap of one and half hour. In the
meanwhile, conversation with Daroga Ji continued.
He was narrating to Daroga Ji and he was writing
the report and signature of the informant (PW-1)
was obtained after the same was written. This is
further indicative of fact that the written
report stated to have been lodged at Police
Station Chopan at 7:10 p.m. on 22.02.2003 is ante
timed and was in fact not lodged at 7:10 p.m. but
the report is outcome of consultation and
deliberation with the police.

¶50

In such fact situation, the suggestion given
by the defence that the informant was very much
offended with the poor men and labourers of
'Kanhaura' and had earlier lodged report against
these persons for causing arson at his house on
05.07.2002 and his house was blown by dynamite

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and in that regard, the names of the present
accused were also dragged but they were not made
accused. The motivating force for lodging the
first information report appear to be jealously
and grudge against the present accused on account
of enmity.

¶53

It has emerged in the testimony of the
information PW-1 that some case was lodged
against the informant whereby allegations of
forced and bonded labourers were made against him
(informant). PW-1 has testified that at the time
of the incident, Bandhu was Pradhan of his
village and he (informant) had no enmity with
Bandhu. Bandhu had given in writing that no such
incident of arson ever took place. He has also
informed in writing that Raj Narain Giri is
sturdy person, he spreads terror and causes
embarrassment to the poor men of the village by
holding that they should act according to the
wishes of Raj Narain Giri.

¶54

One surprising aspect of testimony of the
prosecution witnesses is noticeable on perusal
that the informant Raj Narain Giri PW-1 has
admitted fact in his cross examination that names
of the accused Jagarnath and Rambali were wrongly
written in the report and their names were spelt
at the instance of the nephew of the informant.

¶55

Further on the factual aspect about
participation of Jagarnath and Rambali in the
alleged incident, PW-2 and PW-3 are not
testifying on correct lines. Uma Shanker Giri PW-
2 says that he saw Rambali and Jagarnath causing

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fire by lightening pipes. Similarly, Kripa
Shanker Giri PW-3 also says that among accused
Rambali and Jagarnath were also present. This
specific piece of testimony by PW-2 and PW-3 is
an apparent improvement on material point and
this appear to be outcome of serious deliberation
in collusion with the police. This outcome is
very much supported by fact emerging in the cross
examination of Kripa Shanker Giri PW-3 when he
testified in obvious terms that he does not know
parentage of the accused and he did not spell the
parentage of the accused to Daroga Ji. How Daroga
Ji wrote parentage in his statement is beyond his
comprehension and he cannot assign any reason for

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the same. This shows activeness of the
Investigating Officer in writing statement of
witnesses at whim.

¶59

Apart from above, there are lot of
contradictions not only in the testimony of PW-2
and PW-3 but also in the testimony of the
informant Raj Narain Giri PW-1, Uma Shanker Giri
PW-2 and Kripa Shanker Giri PW-3. It has already
been observed that no list of burnt items was
ever prepared, whereas, the first information
report contained description that list of burnt
articles will be supplied later on. All these
facts when taken together, create lot of doubt
and serious dent in the prosecution story. It can
be affirmed with ample certainty that in this
case, lodging of the first information report is
ante timed which fact alone is sufficient to
throw away the case of the prosecution.

¶60

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The trial Judge while considering these
aspects could not record appropriate finding in
regard to these particular facts and erroneously
recorded conviction which conviction is not
sustainable in its present form and sentence
awarded is liable to be set aside.

¶62

Consequently,the judgment and order of
conviction dated 01.11.2003 passed by the
Additional Sessions Judge, Fast Track Court,
Sonbhadra, in Session Trial No.37 of 2003 State
Vs. Krishna and others, arising out of Case Crime
No.106 of 2003 under Sections 436, 147, 427
I.P.C., Police Station- Chopan, District-
Sonbhadra, is hereby set aside.

¶63

Accused-appellants are acquitted of the
charges as above.

¶64

Accordingly, the instant appealsucceeds and
the sameisallowed.

¶65

In this case, the appellants are in jail.
They shall be released forthwith unless and until
they are wanted in connection with any other
case. The appellants shall ensure compliance of
Section 437A Cr.P.C.

¶66

Let a copy of this order/judgment be
certified to the court below for necessary
information and follow up action.

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Order Date :- 02.11.2018

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rkg

Krishna @ Krishna Koiri and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

Krishna @ Krishna Koiri and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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