Allowed

Raghubir Singh v. State

Allahabad HC19 Nov 2022CRLA/982/1988

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, holding that the prosecution failed to prove the accused's guilt under Section 323 IPC. The court set aside the trial court's conviction, citing contradictions in evidence, lack of genuine FI R, and insufficient corroboration of injuries, applying the principle of benefiting the accused when two views are possible.

What did the court decide?

The judgment and order dated 19.3.1988 set aside; the accused appellants found not guilty under Section 323 IPC and acquitted.

Raghubir Singh Vs State — Cheating and Forgery | Allahabad HC (2022)

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Court No. - 68

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Case :- CRIMINAL APPEAL No. - 982 of 1988

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Appellant :- Raghubir Singh and others Respondent :- State Counsel for Appellant :- Ravindra Singh,Rajeev Malviya Counsel for Respondent :- A.G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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This criminal appeal has been preferred against the judgement and order dated 19.3.1988 passed by the Special Judge ( Dacoity A.A. Act)/ III Additional Sessions Judge, Mainpuri in Special S.T. No. 60 of 1981 whereby appellants have been convicted under Section 323 I.P.C and were released on probation of good conduct for a period of one year on each of them executing a personal bond of Rs. 5000/- and furnishing two sureties each in the like amount to maintain the good conduct and behaviour for a period of one year.

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At the outset it is to be noted that during pendency of this appeal, appellant Raghubir died and vide order dated 15.9.2022 appeal in respect of said appellant has been abated. Now, only appellant nos.2 Om Pal Singh, appellant nos. 3 Naresh and appellant no.4 Mahavir are surviving.

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As per the prosecution story, on 8/9.6.1980 while complainant Udaivir Singh and his brother Shishupal Singh were irrigating their field situated near their house in the western side, at about 11.00 – 12.00 p.m., complainant heard the hue and cry of ladies of his house, therefore, he and his brother reached towards the gate of his house. He found that few persons were climbing upon his house and main gate of his house was open. It has been further mentioned that on the roof of his house, complainant’s

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cousin Mukesh Babu and brother-in-law Bachan Singh were sleeping and mother of the complainant and other persons were also lying and the lantern was liting. An electric bulb was also giving light at the roof of the house. Four miscreants were beating the complainant’s cousin, his brother in law and ladies and they robbed the valuables / articles. It has also been averred that two miscreants were on the roof whereas two were at the gate. On alarm raised by complainant and his brother, many persons of the locality reached there with torches and lathies. Feeling pressure, miscreants fired towards them and fled away. Prem Chandra of village Mughalpur received gun shot injuries. Mukesh Babu, Bachan Singh, complainant’s mother and wife received injuries by the beating of miscreants. Miscreants were identified as Raghubir Singh, Om Pal Singh sons of Sukh Lal Singh Thakur of village Dhithara P.S. Shikohabad, Naresh son of Lalaram resident of village Prahaladpur and Mahavir son of Kashi Ram Kori of village Mugalpur.

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On the basis of aforesaid facts, an FIR under Sections 395 and 397 I.P.C. was lodged. Investigation started and after investigation charge sheet under Sections 395, 397 I.P.C. was submitted against accused Raghubir Singh, Om Pal Singh, Naresh and Mahavir Singh. Concerned Magistrate took the cognizance. The case being exclusively triable by sessions court, was committed to the Court of sessions.

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Accused persons appeared before the trial court and charge under Section 395 IPC was framed against them. They denied the charges and claimed their trial.

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6. Trial proceeded and to bring home the charge against the accused persons, prosecution has examined in all five witnesses, who are as follows:

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1	Udaivir	PW-1 - informant
2	Mukesh Babu	PW-2 - Injured
3	Bachan Singh	PW-3 - Injured
4	Constable Chandra Pal Singh	PW-4 – Constable / Clerk
5	S.I. Surjan Singh	PW-5 - Investigating Officer

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In support of oral version, following documents were filed and proved on behalf of the prosecution:

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1	Written report	Ext. A-1
2	List of looted articles	Ext. A-2
3	Chik F.I.R.	Ext. A-3
4	G.D. entry	Ext. A-4
5	G.D. Loss report	Ext. A-5
6	Site Plan	Ext. A-6
7	Memo regarding empty cartridges	Ext. A-7
8	Memo regarding lantern	Ext. A-8
9	Memo regarding collecting of 8 empty cartridges from the place of occurrence	Ext. A-9
10	Charge sheet	Ext. A-10
11	Injury reports	Ext. A-11 to Ext. A-18

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After conclusion of evidence, statements of accused persons were recorded under Section 313 of Cr.P.C., in which they pleaded their false implication due to enmity. In support of its case, defence has examined DW-1 Shiv Narain and filed seven documents as Ext. kha-1 to Ext. kh-7.

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PW-1, PW-2 and PW-3 are the witnesses of fact. 10. P.W-1, namely, Udaivir Singh, in his oral testimony, has reiterated the F.I.R. version and proved written report Ext. ka-1.

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P.W.-2 Mukesh Babu stated that in the night of occurrence, he was sleeping on he roof of the Atta of his house alongwith Bachan Singh - PW-3. His brother’s wife, mother, niece and children were sleeping in the courtyard. There was light of bulb and lantern on the roof and also in the courtyard. He further stated that at about 11-12 p.m. miscreants after entering into the house and beating them looted the articles from the house. He also identified the accused Raghubir, Naresh, Mahavir and Om Pal Singh in the Court during his evidence.

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PW-3 Bachan Singh has stated that in the intervening night of 8/9.6.1980 he was sleeping in the house alongwith Mukesh and at that time Udaivir PW-1 and Shishupal were working at tube-well. Mother and wife of Udaivir alongwith children were sleeping and electric bulb was lighting at the roof whereas lantern was liting in the house. Miscreants entered into the house and were identified by him as Raghubir, Om Pal, Naresh and Mahabir Singh. Further, he supports the prosecution story of dacoity and assault.

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P.W., 4 Constable Chandra Pal Singh, has proved the F.I.R., G.d. and G.D. missing report as Ext. ka-3, Ext. ka-4 and Ext. ka-5, respectively.

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PW-5, S.I. Surjan Singh, the Investigating Officer has proved the proceedings of investigation in his evidence and also the papers in this regard.

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The trial Court perused and analyzed the whole prosecution evidence minutely and found substance in the oral and documentary evidence adduced by the prosecution evidence so far as it relates to causing injuries to the inmates of the house but did not find any corroboration of

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the fact of dacoity. Hence, the trial Court was of the opinion that offence under Section 395 I.P.C. was not proved against the appellants but found them guilty for the offence under Section 323 IPC and accordingly conviction was recorded against the accused persons under Section 323 I.P.C. and they were released on probation of good conduct for a period of one year on each of them, as denoted herein above.

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Learned counsel for the appellants has submitted that the entire prosecution story is false and fabricated and the trial court has erred completely in holding the appellants guilty under Section 323 IPC. A perusal of the impugned judgment reveals that the learned trial court did not find any case against the appellants but for shaky reasons and on the basis of perverse finding conviction under Section 323 IPC was recorded against the appellants. It has been pointed out that the factum of dacoity, the previous enmity between the parties, the in-genuineness of the F.I.R, the depositions of highly interested and related witnesses, falsity of story of robbery of any article from the informant side, have been highlighted by the trial court itself in its judgment.

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On the other hand, learned AGA has vehemently opposed the contentions raised by the learned counsel for the appellants. It has been argued that it is true that the evidence was found not sufficient to prove the guilt of the appellants under Section 395 IPC but there was sufficient evidence to convict them under Section 323 IPC and accordingly the trial court has passed the impugned judgment of conviction on reasonable grounds and in a legal manner. The findings recorded by the trial court in the

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impugned judgment are in accordance with facts, evidence and law and not perverse.

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The rival contentions of both the parties lead this Court to go through the entire evidence on record and also the judgment of conviction recorded by the learned trial court.

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It is noteworthy that after investigation charge sheet was filed under Section 395 and 397 IPC against the appellants. It is evident from a perusal of the impugned judgment that the learned trial court on so many grounds found the prosecution story false and fabricated and even the F.I.R. of the case was not bonafide and that is why the trial court came to the conclusion that no offence under Section 395 IPC was made out against the appellants.

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The learned trial court while examining the genuineness of the F.I.R. has made a categorical finding that “it further shows that complainant did not lodge the report with clean hands”.

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The learned trial court also found that the parties were on inimical terms due to the litigation and property dispute prior to the occurrence. It has been highlighted in the impugned judgment that the fact of litigation or enmity was not disclosed deliberately in the written report by the informant and the informant party tried to hide the correct facts. When the learned trial court at one stage found that the F.I.R. of the case was not a genuine document and it was not lodged with clean hands, nothing remained to proceed further, as the F.I.R. is the backbone and foundation of every case. Needless to say that if the foundation is shaky and false, no building can be built-up over such foundation. In the matter of Nallabothu Ramulu alias Seetharamaiah and

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others vs. State of Andhra Pradesh with Chalmala Veeraiah vs. State of Andhra Pradesh, 2014 Cri. L. J. 2487 (Supreme Court) where alongwith other infirmities circumstances regarding the F.I.R. were found suspicious, the Hon’ble Apex Court held that the whole prosecution story was doubtful.

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There is also a finding in the impugned judgment that for the reasons best known to the prosecution, the independent witnesses were not examined. Witness Sultan Singh, Sher Singh, Punjab Singh and Prem Chandra were not produced by the prosecution for the reasons best known to the prosecution, the learned trial court also finds it.

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The learned trial court has also pointed out that in fact not a single article, which was looted, was mentioned in Ext. ka-1. Analysing the prosecution evidence, the learned trial court also opined that in fact no incident of dacoity was happened. The trial court has also made it a point of concern that the empty cartridges were not produced in the Court for the reasons best known to the prosecution and this fact also goes against the prosecution, as the learned trial court records.

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The evidence available on record clearly shows that the parties were on inimical terms prior to the occurrence. They were well known to each other. It is highly improbable that the persons, who are very well known to the informant and his family members would come into the night with arms in their hands only to inflict simple injuries to the informant and his family members. PW-1 states that none of the accused persons tried to hide their faces. This is not natural and probable in the facts and circumstances of this case.

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These are the grounds vide which the learned trial court was of the view that no offence under Section 395 IPC is made out, however, relying upon the injury reports Ext. ka11 to Ext. Ka-18, the learned trial court opined that simple hurts were caused to eight persons and on that basis the impugned conviction order was passed. It is pertinent to mention here that as per the prosecution evidence, firearm was also used in the occurrence and the injury of pellets was inflicted upon Prem Chandra. The trial court itself doubted the use of firearm in the occurrence. In this way, the impugned judgment is self-contradictory and perverse.

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The learned AGA has made it a point that during course of evidence, PW-3 has identified the accused persons present in the Court but the learned counsel for the appellants contended that if the parties were known to each other much prior to the occurrence what was the necessity to make an identification of the accused persons before the Court. It also shows that it is a case of false implication and the informant party was adamant to get the accused persons convicted at any cost, as argued by the learned counsel for the appellants and I find myself in agreement with this submission.

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From the aforesaid discussions, this Court is of the view that parties were on inimical terms, the prosecution story is not natural and F.I.R. of the case is not a genuine document, which shakes the very foundation of the prosecution story. There is no evidence of dacoity or robbery. No independent witness of the vicinity has been produced. The impugned judgment is full of contrary views and baseless conclusions so far as conviction under Section 323 IPC is concerned.

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In Suchand Pal vs. Phani Pal, 2004 SCC (Cri) 220 , the Hon’ble Supreme Court held that if from the evidence on record and in the facts and circumstances of the case two views are possible, one pointing to the innocence of the accused and other to the guilt of the accused, the view which favours the accused should be preferred.

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Hence, I am of the opinion that the prosecution has failed to establish the guilt of the accused appellants under Section 323 IPC beyond reasonable doubt and to the satisfaction of the judicial conscience of the Court. Hence, the impugned judgement and order of conviction and sentence, which has been sought to be assailed, call for and deserves interference. The criminal appeal is liable to be allowed and the same is accordingly allowed .

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The judgement and order dated 19.3.1988 passed by the trial court is hereby set aside. The accused appellants are found not guilty for the offence punishable under Section 323 IPC. They are acquitted.

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Let a copy of this judgement along with trial court record be sent to the Court concerned, Mainpuri for compliance.

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Order Date :- 19.11.2022 safi

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(Nalin Kumar Srivastava, J.)

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Digitally signed by MAHBOOB SAFI Date: 2022.12.08 13:03:18 IST Reason: Location: High Court of Judicature at Allahabad

Raghubir Singh v. State

Case brief

What is this about?

What did the court decide?

Raghubir Singh v. State

Case brief

What is this about?

What did the court decide?

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