State Of U.P vs Munni Ram & Ors

Section 24 of the Cattle Trespass Act, 1871. The criminal

revision challenging the acquittal of Bhagirath under

1 Section 308/304 read with section 149 IPC was also

dismissed.

2. Briefly stated, the prosecution case was that on

14.6.1983, in the afternoon, Sita Ram (hereinafter

referred to as PW-2) had noticed that the buffaloes of

Ram Ugrah (hereinafter referred to as respondent No: 3)

and Ram Ajore (hereinafter referred to as respondent No:

4) had trespassed into his field and were damaging the

sugarcane crop. He, therefore, drove them out and was

taking them to the cattle pound in the village. He had

only gone a short distance when Munni Ram (hereinafter

referred to as respondent No: 1) met him and enquired

the reason why PW-2 was driving away his buffaloes.

PW-2 told him that the buffaloes had damaged his

sugarcane crop, therefore, he would deposit them in the

cattle pound. On hearing this, respondent No: 1 went

back to his house. When PW-2 reached near the house

of Ilakedar, village Pradhan, respondent No: 1, Maya Ram

(hereinafter referred to as respondent No: 2), respondent

2 No: 3, respondent No: 4 and Bhagirath (hereinafter

referred to as respondent No: 5) confronted him. They

were armed with lathies. They took away the buffaloes

from PW-2 and assaulted him with their respective

weapons. The hue and cry raised by PW-2 attracted his

sister-in-law, i.e. Singari Devi, his son Ramesh and his

brother Ram Kewal to the spot. When they tried to

intervene, they were also assaulted by the respondents.

In fact, other witnesses who came to the spot were also

assaulted. In this short assault, PW-2, Singari Devi,

Ramesh, Hari Ram and Ram Kewal sustained injuries on

vital parts of their bodies.

3. The condition of Singari Devi and Ramesh being

critical, they were brought to the District Hospital, where

they were admitted. All the five injured witnesses were

medically examined by Dr. G.P. Agarwal (PW-10) from

10.00 PM on wards. Ramesh Chandra was first medically

examined at the District Hospital, Basti on 14.6.83 but

was later admitted to the Medical College, Lucknow as

3 his condition became critical. He succumbed to his

injuries on 16.6.1983 within three hours after reaching

the hospital. The post mortem examination on his dead

body was conducted on 16.6.1983 at 3.00 PM by Dr. V.P.

Singh (PW-8).

4. Singari Devi also died on 17.6.1983 at about 4.10

AM at District Hospital, Basti. The post mortem on her

dead body was conducted on the same day by PW-10 at

4.00 PM.

5. The FIR was registered on 15.6.1983 at 7.10 AM by

Avadh Prasad (PW-1). The distance of the police station

is 13 Kms. from village Raunakala where the incident

had taken place. Initially, the case was registered under

Section 147, 308 and 426 IPC. After the death of Singari

Devi and Ramesh, it was converted to Section 147, 308,

426, 304 IPC and Section 24 of the Cattle Trespass Act,

1871. On completion of the investigation, charge sheet

4 was duly submitted and the case was transferred to the

Court of Sessions and Trial Judge.

6. In support of its case, the prosecution examined

PW-1, who registered the FIR of the incident in the

following morning; PW-2, an injured witness, Mohd.

Shami (PW-3), Dr. V.M. Agarwal (PW-4), PW-8 and PW-

10, who had examined all the injured witnesses and

conducted autopsy on the deceased persons. PW-5, Tila

Mohd. Khan is Head Moharrir. He had prepared the

written report and also prepared the check report.

According to him, he had completed the other formalities

pertaining to the FIR. PW-6, Om Prakash and PW-7,

Umesh Babu had filed their affidavits. They had only

escorted the dead body to the mortuary. PW-9 Vidya

Vinod Pathak is Sub-Inspector Police Station, Kotwali,

Basti. He prepared the inquest memo. He also arrested

respondent No: 1, 3 and 5 and took them in police

custody. PW-11 Chhangur Singh had prepared the

panchayatnama of the dead body Ramesh Chandra. Shiv

5 Saran Singh, PW-12 is the investigating officer. This in a

nutshell is the entire prosecution evidence.

7. The defence of the respondents is a cross version of

the incident. According to them, the incident occurred

when PW-2, Hari Ram, Ram Kewal, Ramesh and Gulam

Nabi were trying to remove a branch of the Jamun tree,

which had been cut from the tree and fallen in the field of

the respondents. The incident occurred according to the

respondents at about noon time. Respondent No: 2 had

gone to the field empty handed and requested the

aforesaid persons not to remove the fallen branch of the

Jamun tree. On being so requested, they started beating

him. His alarm attracted respondent No: 1 and

respondent No: 3, who came to the spot armed with

lathies. PW-2, Hari Ram, Ram Kewal, Ramesh and

Gulam Nabi also attacked respondent No: 1 and

respondent No. 3. In the mean time, family members of

both the sides gathered at the spot and started hurling

brickbats on each other. Consequently, both sides

6 suffered injuries. Respondents also got their injuries

medically examined at the District Hospital.

8. After medical examination, they had gone to lodge

the report at the Police Station, Kotwali, Basti. Gulam

Nabi, who is the son of the Village Pradhan was already

present there. It was at then that they were arrested. In

order to prove their version, they have also produced four

defence witnesses. Ram Dulare Tripathi, DW-1 produced

the application sent by the accused party to the

Superintendent of Police containing the defence version.

9. Upon examination of the entire evidence led by the

parties, trial court convicted and sentenced the

respondents as follows:-

(i) Munni Ram, Maya Ram, Ram Ugrah, Ram

Ajore and Bhagirathi under Section 147 and

323. They were sentenced to R.I. for 1 year

7 under Section 147 and 1 year R.I. under

Section 323 IPC.

(ii) Respondents Munni Ram, Maya Ram, Ram

Ugrah and Ram Ajore were also convicted

under Section 304 read with Section 34 IPC

and sentenced to R.I. for 10 years and a fine of

Rs. 5,000/- each. In default of payment of

fine, they were sentenced to further 2 years

R.I.

(iii) Bhagirathi was, however, acquitted of the

offences under Section 308/304 IPC read with

Section 149.

(iv) All the other accused were also acquitted of the

offences under Section 308 and 149.

(v) All the five accused were also convicted under

Section 24 of the Cattle Trespass Act and

sentenced to R.I. for 1 month only.

10. Against the aforesaid conviction and acquittal, the

accused respondents herein approached the High Court

8 by way of Criminal Appeal No. 642 of 1988 and the

complainants challenged the acquittal of respondent no:

5 by way of a Criminal Revision No. 611 of 1988. The

High Court by its judgment dated 7.9.2001 allowed the

aforesaid Criminal Appeal and acquitted all the

respondents. The Criminal Revision No. 611 of 1988 filed

by the complainants was dismissed maintaining the

acquittal of the respondent no: 5.

11. In the present appeal, the State of U.P. has

challenged the common judgment on various grounds.

12. We have heard the learned counsel for the parties.

Mr. Ratnakar Dash, appearing for the State of U.P.

submitted that the High Court has erroneously

disbelieved the clear and consistent evidence of the eye-

witnesses who were also injured witnesses. PW-2,

according to him had clearly stated that on 14.6.1983 at

about 3.30-4.00 PM, he was distributing kerosene from

the P.D.S. shop which had been allotted to him. He went

9 to answer the call of nature and asked PW3 to distribute

the kerosene in his absence. He was carrying some water

in a lota with him for cleaning himself after going to the

toilet. At that time, he saw the buffaloes of respondent

no: 3 and 4 were damaging his sugarcane crop. He had

driven out the cattle and was taking them to the cattle

pound in the village. Particular reliance was placed on

the evidence by PW-2. According to the learned counsel,

this witness had given a detailed and consistent version

as to how the buffaloes of the accused persons namely

respondent no: 3 and 4 had damaged his sugarcane crop.

He had also narrated the sequence about taking the

buffaloes towards the cattle pound in the village.

Thereafter, he had narrated how the five accused armed

with lathies had assaulted him. They had abused him

and also told him that they will finish him off. He had

also further narrated the sequence of events as to how

the other members of the family were also attacked. The

witnesses have completely supported the prosecution

version with regard to the treatment of injury and the

10 subsequent death of Ramesh and Singari Devi. PW-3

had also given a consistent account of the entire incident

which led to the death of two persons. These witnesses

had also denied the cross-version suggested by the

defence, the respondents herein. According to the

learned counsel, the injuries suffered by the defence were

superficial and self inflicted. Learned counsel further

submitted that the High Court wrongly disbelieved the

entire prosecution version on the ground that the injuries

suffered by the respondents had not been explained by

the prosecution.

13. On the other hand, learned counsel for the

respondents submitted that the High Court has rightly

rejected the prosecution version for a number of cogent

reasons. The injuries suffered by the respondents cannot

be said to be superficial. The FIR has been clearly ante-

timed and ante-dated. The genesis of the incident has

been suppressed and a wholly false version has been

projected in the FIR. According to the learned counsel,

11 the complainants were in fact the aggressors. The

incident had taken place in the field belonging to the

respondents when they had objected to the complaints

removing the illegally cut branch of the Jamun tree.

14. We have carefully considered the submissions made

by the learned counsel for the parties and gone through

the judgment of the High Court. The High Court upon a

very careful appraisal of the entire evidence notices that

this being a case of cross-versions, it was the duty of the

Court to ascertain which of the two versions were

genuine and probable. Taking up the evidence of PW-1,

the High Court concludes that the very presence of this

witness is dubious. In coming to the aforesaid

conclusion, the High Court has taken into consideration,

the inconsistent versions of PW-2 and PW-3. It is also

noticed that the name of PW-1 is not even mentioned in

the FIR as a witness. The High Court also notices that

the story about the kerosene oil being distributed by PW-

2 is also concocted. According to the High Court, the

12 prosecution had failed to produce any record of the

distribution of kerosene either by PW-2 or any other

individual.

15. In view of the very presence of PW-1 being shaky,

the High Court concluded that in these circumstances,

no authenticity can be attached to the version given by

him in the FIR. The High Court further notices that PW-

1 had tied to cover up the lacunae in the FIR.

Subsequently, he admitted in cross-examination that

some portion of the FIR was narrated on the information

given by PW-2 and PW-3. He was also unable to give any

cogent description of the sequence of assault on injured.

The High Court concluded that his presence on the spot

in the circumstances was rendered doubtful. His

evidence was that of an interested witness who had deep

affinity with PW-2 and the son of village Pradhan, who

was instrumental in the arrest of the respondents. His

evidence was, therefore, discarded by the High Court.

13

16. Taking up the evidence of PW-2, the High Court

disbelieved the story that he had gone to answer the call

of nature. The High Court also disbelieved that PW-1

was present at the spot when PW2 entrusted the job of

distribution of kerosene oil to PW-3. Upon a complete

analysis of the entire evidence, the High Court concluded

that the story about PW-2 leaving the kerosene shop for

answering the call of nature is a made up story and does

not bear scrutiny. He even feigned to have defended

himself with the vessel (lota) which had got damaged

during the process. The High Court took due notice of

the fact that neither any blood-stained cloth nor the

damaged vessel (lota) were taken into custody by the

investigating authorities. The High Court concluded that

this witness had deliberately introduced Avadh Prasad

(PW1) in the case. He did not distribute any oil on the

day of the incident. The story about driving the buffaloes

to the cattle pound was disbelieved as the animals were

found going towards the house of the witness PW-2. The

14 evidence given by PW-3 has also been discarded for

similar reasons.

17. The High Court, thereafter, notices that the defence

version cannot be discarded. The injuries suffered by the

respondents were not superficial in nature. Three of the

respondents were suffered one injury each on their head.

The High Court further notices that the three

respondents had actually gone to the police station to

make a complaint about the assault on them by the

complainants. Therefore, it cannot be said that the

defence version is not probable. The High Court also

concluded that merely because the prosecution witnesses

had suffered more injuries than the respondents, would

not be sufficient to hold that the respondents were the

aggressor party. In other words, the defence version

cannot be discarded only on the basis of lesser number of

injuries having been suffered by them. The High Court

concluded that the prosecution version is so mixed up

with falsehood that any truth or semi-truth is not

15 possible to be distinguished therein. The High Court also

notices that in this case, the evidence of the prosecution

witnesses is not corroborated by any other independent

witnesses.

18. In our opinion, the conclusions reached by the High

Court cannot be said to be such which has led to a

miscarriage of justice. The High Court has taken a

possible view which could legitimately be taken on the

basis of the inconsistencies in the evidence of the

prosecution. The High Court has acted in accordance

with the well-known principles that if two views are

possible on the evidence adduced, one pointing to the

guilt of the accused and the other to innocence, the view

which is favourable to the accused is normally to be

adopted.

19. It is well settled that in an appeal by special leave

under Article 136 of the Constitution, against an order of

acquittal passed by the High Court, this court would not

16 normally interfere with a finding of the fact based on

appreciation of evidence, unless the approach of the High

Court is clearly erroneous, perverse or improper and

there has been a grave miscarriage of justice.

20. We are of the considered opinion that in this case,

the High Court has merely corrected the omissions in the

appreciation of evidence committed by the trial court in

convicting the respondents. The High Court has taken a

view which is plausible as well as possible. In light of the

aforesaid findings, we find no merit in these appeals and

the same are accordingly dismissed.

...................................J. [B.Sudershan Reddy]

...................................J. [Surinder Singh Nijjar]

New Delhi;

October 26, 2010.

17