State of U.P. Vs. Abimanyu Abhiman Singh and ors. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - surswatia was going to the well lying at about 55 paces to the south west of his house to take bath. the learned trial court after taking the evidence and hearing the parties found that the prosecution has failed to establish the guilt of the respondents-accused beyond doubt and it accordingly giving the respondents-accused benefit of doubt acquitted them, dissatisfied from which the government has preferred these appeals. thus there is bad blood between the parties from before the incident. 2 surswatia while going to the well to take bath as the ladies generally like bath in privacy.y.r. tripathi, j.1. this government appeal is directed against the judgment and order dated 13-9-1985 passed by sri tirtha raj, ilnd addl. sessions judge, banda in s.t. nos. 10 and 511 of 1984 whereby the learned trial court haying given the benefit of doubt to the respondents-accused has acquitted them of the charges under sections 148, 302, i.p.g. read with section 149, i.p.c. and 307, i.p.c. read with section 149, i.p.c.2. the place of occurrence is village piprahiya, which lies five kms to the south of the police station, pailani.3. the prosecution case, in short, is that on 19-8-1982 around 8.00 a.m. deceased-raj bahadur singh accompanied by his mother p.w. 2 smt. surswatia was going to the well lying at about 55 paces to the south west of his house to take bath. he was two paces ahead of his mother. when he had settled hardly a distance of 15 paces from his house it is said that the respondent along with one angad (since absconding) reached there and on the extortion of respondent-ram singh, ram singh himself and angad opened fired on the deceased rest of the respondents too followed the suit. the shots fired by angad hit the deceased and he fell down. the mother of the deceased who was a few steps behind him rushed to his rescue, but she too sustained bullet injury. her cry attracted her husband p.w. 1 rameshwar singh, p.w. 3 man singh alias kallu singh, her grand son and one ramdeo singh, who were sitting on the chabutra to the north west of the house of the informant p.w. 1 rameshwar singh. some other persons of the village two were also attracted on the scene of the incident on hearing the cries, whereupon the accused retrated from the scene of incident firing indiscriminately. after the incident p.w. 1 rameshwar singh got the written report* of the occurrence scribed by ramdeo singh and proceeded to the police station pailani where he made over the written f.i.r. ext. ka-1 there on the basis of which a case at crime no. 81 under sections 147/148/149/302/307, i.p.c. was registered against the respondents and one angad. sub-inspector sri lakhan led, who at the time of registration of the case was present at the police station took up the investigation of the case and proceeded to the spot. he prepared inquest report and after sealing the dead body sent it to district head quarter, banda through constable shiv narain p.w. 6 for its post-mortem examination. p.w. 5 dr, vikash chandra, who was then posted as medical officer in medical care unit, banda conducted the post-mortem examination of the deceased at 3.00 p.m. on 20-8-1982.4. according to the doctor vikash chandra p.w. 5 the deceased was aged about 40 years. he was stout built. rigor mortis had passed off from upper limbs and was present over lower limbs. eyes and mouth were closed. blisters were present at several places. skin had pealed off at several place and abdomen was distended. faeceal matter present at end opening. no discharge was found from ear, nostril or mouth/ he found the following ante-mortem injuries :--i) gun shot wound of entry 1 cm. x 1 cm. x bone deep over lateral aspect (paper torn) left side 4 cm. below the left ear, 0.5 cm. below the mandible, margins inverted direction medially horizontal towards rt. no charring or tatooing present.ii) gun shot of exit 1.25 cm. x 1.25 x communicates with injury no. (1) over lateral aspect of neck on rt side 6 cm below the rt. ear margin everted.iii) contusion 6 cm. x 5 cm. over ant aspect of chest on rt. side just above the rt clavicle.iv) contusion 14 cm. x 8 cm. over ant aspect of chest on 'rt side 4 cm lat to rt nipple at 9.0' clock position.v) gun shot wound of entry 1 cm. x 1 cm. x chest cavity deeps over ant. aspect of chest on left side 1 cm. above the lt nipple at 2.0' clock position. margins inverted direction downwards medially towards rt wound present in between the 4th and 5th rib. no charring or tatooing present.vi). gun shot wound of entry 1 cm. x 1 cm. x cavity deep over ant. aspect of abd 12 cms. from umblicus. 12 cm. from left iliac crust. margins inverted. direction backwards, horizontal towards right side. no charring or tatooing present.vii) gun shot wond of exit 1.25 cm. x 1.25 cm. x communicate with injury no. (5) over back of rt side of chest 12 cms. from lower angle rt scapula from middle, margins everted.5. according to him the deceased had died about 1 1/2 days before due to shock and haemorrhage caused by the ante-mortem injuries.6. it appears that p.w. 2 surswatia, who had also received an injury in the incident was also referred to banda for her medical examination where p.w. 4 dr. sidhdarth, who was then posted in sadar hospital at banda medically examined her at 9.50 p.m. on the very day of the incident. he found a gun shot wound of entry 0.5 cm. x 0.5 cm. x muscle deep on root of nose in between both eye-brows. according to him margins of the injury were lacerated and inverted with abraded collar. he found no blackening, charring or tatooing. her kept the injury under observation and advised x-ray of the skull. according to him the injury was 1/2 day old and had been caused by fire arm. the police of police station pailani after usual investigation presented a charge-sheet against the respondents and accused-angad, who at the time of presentation of the charge-sheet was absconding. the learned trial court framed charges under sections 148, i.p.c. 302, i.p.c. read with section 149, i.p.c. and section 307, i.p.c. read with section 149, i.p.c. against the respondents-accused to which they pleaded not guilty and claimed their trial. the learned trial court after taking the evidence and hearing the parties found that the prosecution has failed to establish the guilt of the respondents-accused beyond doubt and it accordingly giving the respondents-accused benefit of doubt acquitted them, dissatisfied from which the government has preferred these appeals.7. we have heard learned a.g.a. and learned defence counsel at length and have gone through the materials on record.8. it has been argued by the learned a.g.a. that the learned trial court has recorded the acquittal on flimsy and untenable grounds. the learned defence counsel on the other hand defended the order of acquittal.9. from the perusal of the record, it would appear that three witnesses of fact have been produced by the prosecution to support of its case. these witnesses include p.w. 1 rameshwar singh, father of the deceased, p.w. 2 smt. surswatia.mother of the deceased and p.w, 3 man singh alias kallu, son of the deceased. all these witnesses are highly inimical and interested. though some other persons are also said to have witnessed the occurrence, but no independent witness has been examined. from the evidence of p.w. 1 rameshwar singh, it would be borne out that prior to this incident chhattrapal and dharmpal, who were family members of the respondents-accused had been murdered in which he alongwith his deceased son raj bahadur other son ranjeet and several others were accused and they all had been convicted and an appeal against their conviction is pending in the high court. in some other criminal case also family members of both the parties were involved in one or the other way. thus there is bad blood between the parties from before the incident. the non-production of the independent witnesses, therefore, cannot easily be lost sight of in this case, more so when some other persons of the village are said to have reached on the place of occurrence and seen the incident. much emphasis has been laid on the evidence of p.w. 2 smt. surswatia on the ground that she too received injury in the incident and her presence on the spot is proved beyond doubt. it would be found that p.w. 4 dr. sidhdarth, who happened to medically examine her has stated his inability to state as to whether or not her injury was superficial dr. sidhdarth had also advised x-ray of her injury, but no x-ray was taken or produced before him for his opinion. in ext. ka 2 chhithi majroobi, with which p.w. 2 smt. surswatia had been referred to the medical officer, no mention of the place of her injury has been made creating a serious doubt about her having received any such injury at all. the investigating officer also did not record her statement under section 161, cr. p.c. it is alsonot digestible that the deceased would have been accompanied by p.w. 2 surswatia while going to the well to take bath as the ladies generally like bath in privacy. all the prosecution witnesses besides being highly partisan inimical and interested have also made irreconcilable contradictions on material points which render their evidence incredible.10. the defence, it would be found, has also seriously challenged the place of occurrence and the manner and fashion of the incident. from the evidence of p.w. 1 rameshwar singh it is borne out that certain injuries of the deceased had profusely bled and the blood had also spattered on the ground where the deceased had fallen down after sustaining injuries, but no blood was found by the investigating officer though he visited the spot on the very day only after a few hours of the occurrence. a futile attempt has been made by the prosecution to explain the absence of blood on the spot by bringing the evidence that it had rained heavily after the incident but the evidence shows that the dead body of the deceased remained lying on the spot even when it was raining. surprising enough neither any mud was found on the dead body nor it was found wet by the investigating officer at the time of preparation of the inquest report.11. then, there is also evidence that the respondents-accused while retreating from the spot had fire indiscriminately and some of the shots fired by them had also hit the walls. it is also in evidence that some empty cartridges and pellets had also been collected by the investigating officer from the spot, but they were not produced before the trial court. the manner of incident also be-comes doubtful in so far as despite the presence of informant and some of his family members nearby the place of occurrence, no shot was aimed at them. all the aforesaid infirmities in the prosecution case go a long way to make the prosecution case with respect to the place of occurrence and manner and fashion of incident highly doubtful. it is also pertinent to point out that though the investigating officer has been stated to have proceeded to the spot after lodging of the f.i.r. by p.w. 1 rameshwar singh, but the crime number and other particulars of the f.i.r. have not been given in the inquest report and the places of such particulars have been left blank suggesting an inference that probably the f.i.r. had not been taken down by the time the inquest report was prepared.12. thus on consideration of entire materials on record, we find that the prosecution case suffers from serious infirmities and the evidence led in the case falls short of proving the guilt of the accused to the extent of judicial certitude. in our opinion, therefore, the learned trial court on proper appraisal of the evidence has for valid and cogent reasons recorded the acquittal of the respondents giving them benefit of the doubt and the conclusions arrived at by it do not warrant any interference in this appeal.this appeal is, accordingly, dismissed.