State of U.P v. Virendra Kumar Yadav And Another) for offences under Sections
Case Details
Court No. - 42 Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 361 of 2012 Applicant :- Shesh Narayan Mishra Opposite Party :- State of U.P. and Others Counsel for Applicant :- Shyam Sunder Mishra Counsel for Opposite Party :- Govt. Advocate Hon'ble Brij Raj Singh,J. Order on Appeal : 1. Heard Sri S.S. Tripathi, learned A.G.A. for the State and perused the record with his assistance. None appeared for the applicant/appellant. 2. This is an appeal under Section 372 Cr.P.C. preferred against judgment and order dated 31.08.2012 passed by the Additional District & Sessions Judge/Special Judge (E.C. Act), Fatehpur in Sessions Trial No. 580 of 2010 (State of U.P. Vs. Virendra Kumar Yadav And Another) for offences under Sections 308, 323, 504, 506 I.P.C. Police Station Bindki, District Fatehpur, by which the accused respondents have been acquitted. 3. The complainant (Shesh Narayan Mishra) lodged a report that his brother Shiv Narayan Mishra and Alok Kumar were coming back after closing their shops. The allegation was made
Legal Reasoning
that when they reached to the shop of Sriram situate at Kasba Bindki, accused, namely, Virendra Kumar Yadav and Arvind Kumar Yadav, started abusing them and beaten with lathi and danda. The NCR was lodged being NCR No. 197/10, under Sections 323, 504, 506 I.P.C. The case was converted into F.I.R. since earlier it was lodged as NCR and Section 308 I.P.C. was added. 4. The case was investigated and charge sheet was filed. The charges were framed and the accused respondents pleaded for trial. 5. Prosecution, in order to prove the charge, produced P.W. -1 (Shesh Narayan Mishra) (the complainant), P.W. -2 (Shivnarayan Mishra), P.W. -3 (Alok Kumar Mishra), P.W. -4 (Dr. K.S. Mishra), P.W. -5 (Constable Arvind Kumar Rahi), P.W. -6 (Om Prakash Dwivedi, I.O.), P.W. -7 (Dr. Rakesh Pathak), P.W. -8 (Constable Moharrir Shayam Narayan Bajpayee). 6. The accused were confronted under Section 313 Cr.P.C. They denied charge and pleaded that they were not guilty and were falsely implicated. They stated that out of pressure the medical report was obtained against the accused. They further stated that it was a case of loot in some other incident but they have been implicated. 7. The trial court conducted the trial and after adducing the evidence on record and taking the oral statement of the accused respondents as well as the statements of prosecution witnesses, came to conclusion that the prosecution failed to prove the charge against the accused respondents. Consequently, acquitted the accused respondents. Hence the complainant has preferred the present application seeking leave to appeal. 8. P.W. -1 to P.W. -3 are the witnesses of fact who have supported the prosecution case in examination in chief as has been set up in the F.I.R. The other witnesses, namely, P.W. -4 to P.W. -8, are the formal witnesses who have proved the document. 9. The injured Shiv Narayan Mishra was medically examined and found inflicted with the following injuries. "(i) Lacerated wound c swelling around - Size of Swelling 9 cm X 7 cm present over Lt Parental region of Scalp Size of L/w -4 cm X 0.5 cm Scalp deep present in middle of Swelling - 10 cm above from Rt Ear - Bleeding present vomiting present. Adv X - ray Skull (AP & Lat View). Injury KVO (ii) Contusion - Size 6cm X 2cm present over Lt Thigh just above Lt Knee Joint Reddish colour Tenderness present. Movements restricted Adv X-ray Lt Thigh (AP Lat view) (iii) Abraded Swelling – Size 6 cm X 2 cm present over back of Rt elbow Joint. (iv) Contusion – Size 11cm X 2cm present over Rt side of back of chest 10cm below Rt Scapula. (v) Contusion – Size 3.5cm X 1.5 cm present over Lt Scapular region 14 cm below C7 vertebra. (vii) Traumatic Swelling -Size 4cm X 2.5 cm present over Rt mastoid region. Opinion – All injuries caused by hard and blunt object. Injury No. (1) & (2) Kuo and rejd to DH Fatehpur for X-ray, Expert opinion and further management. All other Injuries are simple in nature. Duration is about fresh. Expert opinion of Surgeon sought for rule out any internal carnial injury." 10. The other injured, namely, Alok Kumar is also stated to have received the following four injuries. "(i) Contusion -Size 11cm X 2cm present over back of Lt thigh 10cm above poplitcal fossa. Reddish colour. (ii) Traumatic Swelling – Size 8 cm X 5 cm present over Lt thigh 4.5 cm above Patella. (iii) Contusion – Size 3.5cm X 2.5 cm present over back of Rt leg 17 cm below Popliteal fossa. Reddish colour. (iv) Traumatic Swelling – Size 8cm X 6cm present over Lt side of chest around Lt Nipple – Tenderness present Pain Inercating on deep Inspiration. Adv X -ray chest P/A view. Opinion – All injuries caused by hard & blunt object. Injury No. (4) Kuo and refd to Distt Hospital Fatehpur for X-ray, Expert Opinion & further management. All other injuries are simple in nature. Duration is about fresh." 11. Dr. K.S. Mishra, who medically examined injured Shivnarayan and Alok Kumar, was produced before the court during trial. Both injured were examined and X-ray was advised. The X-ray was conducted but X-ray plates of both injured were not proved. Dr. K.S. Mishra, the witness stated before the court during examination that he had not prepared any supplementary report on the basis of X-ray plate. The doctor further stated that the injured were examined on 14.08.2010 at 12.:45 A.M. and 1:05 A.M. and opined that the injuries were caused prior to six hours from which it transpires that the injured received injuries on 13.08.2010 at around 6-7 P.M. It is pertinent to note that as per prosecution case the incident took place at 11.30 in the night of 13.08.2010. On this count, it is clear that the prosecution case is totally shattered and highly doubtful as the medical report indicates that the incident did not took place at 11:30 and the accused have been falsely implicated. 12. P.W. -7 (Dr. Rakesh Pathak), the Radiologist was also examined (Exhibit Ka-7 and Ka-8 of Shivnarayan Mishra and Alok Kumar, the injured persons) but doctor deposed before the Court that X-ray plates of both these injured were not prepared by him nor any direction was issued regarding preparation of the said plates. The prosecution could not prove that any X-ray report was prapared by this doctor. The doctor was unable to identify the injuries on the basis of unproved X-ray plates. In absence of proof of X-ray plates, it cannot be said that the injuries reflected from the X-ray plates do belong to Alok Shukla and Shivnarayan Mishra. 13. The complainant himself has admitted that there was no enmity, thus, the motive part which was alleged in NCR is missing. In the statement of P.W. -1 and P.W. -2 motive is absent, which is supporting the defence version. 14. The statements of P.W. -1, P.W. -2 and P.W.-3 are contradictory. In the cross examination, P.W. -1 stated the names of witnesses as Saurabh Tiwari, Sonelal, Rajan Tripathi and Afjal Siddiqui, whereas in the cross examinationof P.W. -2 and P.W. -3, the aforesaid witnesses are not named. 15. The medical report has been seen and perused by me, in which the doctor's deposition before the trial court seems very important wherein the doctor has admitted that the incident took place around 6-7P.M. but the NCR lodged by the complainant indicates the timing of incident at 11:30 P.M. 16. It there are two possible views, the benefit of doubt goes to the accused but in the present case, after perusing the oral statement of doctor as well as the medical report, it is evident that the incident did not take place at the time which was mentioned by the complainant either in the NCR or in cross examination. Thus, the prosecution miserably failed to prove the case beyond reasonable doubt. 17. On an overall observation of the aforesaid facts and situations, I find no illegality, infirmity or perversity in the view taken by the trial judge and finds myself unable to persuade to take any opinion different from the trial judge.
Decision
18. The appeal is dismissed at admission stage. Order on Leave to Appeal Application: 1. The matters related to U/s 372 Cr.P.C. seeking leave to appeal, has been dealt with by the Hon'ble Supreme Court in various cases. One of the such case is Naval Kishore Mishra Vs. State of Uttar Pradesh [Criminal Appeal No. 972 of 2019], wherein the Supreme Court has laid down that if the appeal is filed by the victim itself, there is no need of a separate application for leave. 2. The application seeking leave to appeal is, therefore, disposed of. Order Date :- 11.2.2022 Arun K. Singh Digitally signed by ARUN KUMAR SINGH Date: 2022.02.17 17:39:21 IST Reason: Location: High Court of Judicature at Allahabad