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HIGH COURT JUDGEMENT
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  Date 2/23/2012 12:00:00 AM
     
  Judgement
  HIGH COURT OF JUDICATURE AT ALLAHABAD 


Criminal Appeal No.1565 of 1982 


Hausila Prasad and another ......................... Appellants 

VERSUS 

State of U.P. and another ..................... Respondents 


Hon'ble Vinod Prasad, J. 

Two real sibling brothers Hausila Prasad and Rampher, both sons of Sripat, resident of Bahaudeenpur, P.S. Machlishahar, district Jaunpur, have questioned their conviction u/s 436 IPC and imposed sentence of two years RI with fine of Rs.1000/- therefor on each of them, with default sentence being six months further R.I, and also awarding Rs. 1000/= as compensation to the victim complainant Ramraji, recorded by IInd Additional Session's Judge, Jaunpur, in S.T. No.47 of 1980, State Vs. Hausila Prasad and another. 
Described briefly, complainant's allegations were that her house is adjacent to the house of Ram Shiromani, her brother-in-law (devar). Adjacent to their houses was a residential thatch in which complainant's and her devar's children resided. There was animosity between complainant and the accused appellants, because of which, a day earlier to the present incident, on 17.12.1978, devar Ram Shiromani and his son Krishna Kumar were framed-in a false case and were got arrested and by the time, present incident occurred they could not get bail. On the date of the incident, 18.12.1978 at 5 p.m., both the appellants came at complainant's thatch vetuparising her, which had attracted Sewak, Ram Jiyawan and many other co-villagers at the scene. Initially complainant inhibited hurled abusive words but later exacerbating their scurrilous act, appellants torched her thatch by their matchsticks, gutting it and another adjacent hutment, completely, alongwith the articles, a bed and a sari, kept in it. Villagers doused the fire because of which adjacent another residential abode of the complainant was saved from being gutted. Adya Prasad, husband of the complainant resides away from the house, in connection with his vocation and hence, during the incident, no male member was present at complainant's house. Because of ensuing night complainant could not proceed to the police station and consequently, following day morning (19.12.1978), she went to the police station but head moharir refused to take down her FIR because of the influence of the accused persons and being in hands and gloves with them. On the same day an application was moved by the complainant before Superintendent of Police, vide Ext. Ka-1, but with no result. Since police did not impart justice to the complainant that she lodged complaint before Special Judicial Magistrate, Jaunpur, on 20.12.1978, Ext. Ka-2, against the malefactors annexing registry receipt, Ext. Ka-3, of the application sent by her to the Superintendent of Police. Four to Six days after the incident, her devar called a photographer, who had photographed the burnt thatch by preparing it's negative and photos,material Ext. Ka-1 and 2. 
With aforesaid allegations, complaint of complainant Ram Raji, Annexure No.2, was registered as Complaint Case No.576 of 1978, Ramraji Vs. Hausila Prasad and another, on 20.12.78. Same day her statement under Section 200 Cr.P.C. was recorded. On the strength of aforesaid complaint and statement, recorded during inquiry, accused persons were summoned to stand trial for committing crime under Section 436 IPC. Since that offence was Session's triable, hence case of accused appellants was committed to the court of Session's where it was registered as S.T. No.47 of 1980, State versus Hausila Prasad and another. Both the appellants were charged under Section 436 IPC, which charges were denied by them and they claimed to be tried and consequently, to establish their guilt, their prosecution commenced. 
In the trial, prosecution examined complainant RamRaji (P.W.1), Ram Sewak (P.W.2), Ram Jiyawan(P.W.3) as the three fact witnesses. In their statements under Section 313 Cr.P.C., accused persons denied prosecution evidences and incriminating circumstances put to them and pleaded their false implication because of enmity. 
Vide impugned judgement of conviction and sentence, trial court recorded a finding that guilt of the appellant for framed charge was established beyond doubt and hence convicted and sentenced them, as has already been mentioned above, hence, this appeal challenging the aforesaid judgement and order. 
At the time when the appeal was called out for hearing, nobody appeared to argue the appeal and hence Sri P.C. Srivastava was appointed as amicus curiae to assist the Court. 
I have heard Sri P.C. Srivastava, learned amicus curiae and Sri A.P. Singh, learned AGA for respondent state, for and against this appeal, and have gone through the oral and documentary evidences existing on record. 
Assailing the impugned judgement of conviction and sentence, it was submitted by learned amicus curiae that the proceeding under Section 145 Cr.P.C. was already in the offing between complainant and accused and since, prior to the date of the incident, there was brawl continuing, therefore, appellants have been falsely implicated. It is further submitted that on the date of the incident itself, prior to the present incident, an incident of assault was alleged to have taken place regarding which Shanti Devi, daughter of complainant, had lodged a case mentioning the time of the incident as 3.30 p.m. but, in the aforesaid offence, accused were acquitted by a competent court. It is therefore, contended that because of animosity appellants were roped in successive crimes, and in one of them they have been acquitted and this second crime is also feigned and fabricated, as no such incident as alleged by the complainant, ever took place and, therefore, appellants be acquitted and their appeal be allowed. Next, it was contended that, but for ipse dixit and bald statements, no other circumstance has been established by the prosecution to bring home the charge against the appellants, so much so that brother-in-law (devar) of complainant, Ram Shiromani and his photographer Mushtafa, never entered into the witness box to lend credence to her allegations and the photo and negative were not admissible in evidence being contrary to section 60-65 of The Evidence Act. On the strength of these submissions, it was contended that appeal be allowed and the appellants be acquitted of the charge levelled against them and they be set at liberty. 
Learned AGA argued to the contrary and submitted that all the three prosecution witnesses have corroborated each other regarding setting ablaze of the thatch and the defence has not been able to shatter their testimonies and therefore, guilt of the appellants is proved beyond doubt and their appeal, therefore, be dismissed and their conviction and sentence be affirmed. 
I have considered the rival contentions and have vetted oral and documentary evidences. What is established on the record is that there was enmity between complainant and appellants regarding an immovable property, in which connection, a proceeding u/s 145 Cr.P.C. was already going on between them. On the date of the incident, Shanti Devi (daughter of complainant) was alleged to have been assaulted by the appellants, regarding which, she had lodged a case, but in that crime accused persons were acquitted by a court of competent jurisdiction. According to the complainant's version, her thatch was set ablaze on the date and at the time of the incident but to establish that fact, the complainant could not bring on record any convincing evidence except bald statements. She, got the burnt thatch photographed from Mushtfa but the photographer never entered into the witness box to support her case. Complainant (P.W.1), vide paragraph 22 of her deposition, had stated that she does not known how much money was spent in getting the incident scene snapped. Money was given by her dewar and she does not know anything about it. She had further testified that four or six days after the incident, the burn thatch was photographed by photographer Mushtfeen Ahsan, who had delivered it four to six days after it was photographed. As mentioned above this photographer was not examined during trial by the complainant, to support her claim. In such a view, neither negative nor the photograph could be connected with the incident in question. Trial Judge has nowhere mentioned that any effort was made by it to examine the photographer. Unless the negative and the photograph were connected with the incident scene, they were in- admissible in evidence. No foundation or basis of accepting them in evidence was brought on record by the complainant. Her bald statement that she had taken the subpoena to the photographer but he was not present at his residence and it was informed to her that he had gone to Bombay and there was no news of his coming back is not sufficient to accept the negative and the photograph in evidence. Secondary evidence can be permitted but only after the Court comes to the conclusion that the primary evidence in that respect cannot be led. The requirements of section 65 of the Evidence Act has to be complied with before a secondary evidence can be admitted in evidence. No such foundation was laid, either by the prosecution or by the complainant, in that respect and, therefore, no reliance can be placed on the negative and the photograph. At this juncture it will be relevant to note how the photograph and negative were got exhibited by the trial judge. In fact entire deposition of complainant (PW1) was over and she was discharged and date for examining other witnesses was fixed. On 25.5.82, no other witness turned up to testify and therefore application for adjournment was filed by the ADGC, along with another application for recalling (PW1) to prove photograph which was snapped in her presence. Though the trial judge rejected adjournment application, but it allowed recall application and recorded statement of PW1. Perusal of application, however, indicate that no basis was mentioned for leading secondary evidence. Only this much is mentioned in the application- "photographer is not present. Complainant is present. Photo of the burnt Marha was taken in her presence. 
It is prayed that the complainant Smt. Ram Raji be recalled to prove the photograph." 
On such an application permission to lead secondary evidence should not have been granted.(PW1) had no knowledge about the photo being that of the incident scene. She had no knowledge that photographer had given them the same photographs, which he had snapped regarding incident scene. Three was no occasion for the trial judge to allow the prosecution to lead secondary evidence in such fact scenario. Only photographer would have been in a position to disclose identity of that photo and confirm it of being of the incident scene. Trial judge wholly misapplied the law against mandate of section 65 Evidence Act. Further, as stated above neither devar Ram Shiromani appeared in the witness box nor the photographer.(PW1) had no knowledge about the photograph and hence she could not have proved it. Accused have challenged the genuineness of this photo and negative of being manufactured and not of the incident scene. Thus admitting of negative and photo and marking it as Ext. Ka4 and Ext. ka 5, was illegal. In this respect, some of the judicial pronouncements supporting the aforesaid view are referred to herein below:- 
In The Roman Catholic Mission versus The State of Madras and another:AIR1966 SC 1457 it has been held as under:- 
"The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence. The High Court rejected them and it was plainly right in so deciding." 

In Sital Das versus Sant Ram and others:AIR1954 SC 606 it has been observed by the apex court as under:- 
"In this case no foundation was laid for reception of secondary evidence under section 65 of the Evidence Act, nor can the copy produced be regarded as secondary evidence within the meaning of section 63. In these circumstances, we must hold that the will alleged to have been executed by Kishore Das in the year 1911 has not been proved and the translation of an alleged copy of it which has been produced in this case should be excluded from consideration." 

In Ram Raj versus State : 1991 JIC 181 it has been held by this court as under:- 
"The fact that the dead bodies were of Dukkhi and Kandhai has been sought to be established by the evidence of P.W. 6, Babadin and P.W. 9, Gangadin who identified the photographs Exts. 8 and 9 to be of Dukkhi and Kandhai. These photographs have not been proved according to the strict rules of evidence. P.W. 16, S.I. Drig Vijai Singh has simply stated that while he was making investigation, S.I. Dhanai Ram brought a photographer who took photos of both the dead bodies. P.W. 10 Constable Sheo Shankar Tewari, on being shown the photographs, Exts. 8 and 9 stated that they were the photos of the dead bodies which were produced by him before the Medical Officer. S.I. Dhanai Ram or the photographer has not been examined. It was the duty of the prosecution in view of the provisions of sections 60 to 65 of the Evidence Act examine the photographer who might have proved that he had taken photos of the dead bodies and had developed the photographs, Exts. 8 and 9 from the negative or to examine some who might have testified that the photos of the dead bodies were taken and the photographs, Exts. 8 and 9 were developed and prepared from the negatives in his presence. It is usual to produce the negative in the Court." 

In Smt. J. Yashoda v. Smt. K. Shobha Rani:AIR 2007 SC 1721 it has been held by the apex court as under:- 
" The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another AIR 1975 SC 1748 it was inter alia held as follows: 
"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent No.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court." 
In M/s. Himatsingka Seide Ltd., Bangalore and Ors. v. Shambappa Basappa:2010 CR.L.J. 1057 it has been held as under:- 
"16. In this case, the party has sought to produce the xerox or photo copy of the alleged M. O. U. The xerox or photo copy by itself will not become secondary evidence, unless it is shown that, it is accurate copy of the original. 
17. In case of xerox or photo copy, Section 63 of the Evidence Act requires that, the said copy must itself ensure that it is accurate copy, such as competent authority certifying the copy as accurate copy of the original. Hence, the photo copy by itself may not be admissible, but if it is proved that it is made from the original, it is admissible." 
In Suraj Mal versus State: 2010 Cr.L.J. 1583 it has been held as under :- 
"............This doctor has not proved the contents of the documents, i.e. injury report whereby an inference can be drawn that all the injuries were found on the person of the injured. In absence of it, a written document cannot be said to be proved by virtue of Section 67 of the Indian Evidence Act." 
Further no photo was filed before the Magistrate nor the photographer was examined by(PW1). She even did not possess the photo at that time. She did not file the photo at the time of committal of the case as well. More over from the filed photo it does not indicate necessarily that it belonged to the incident place. There does not seems to be any burnt thatch visible in it. Mud wall also does not contain any inflammable signs. 
Turning towards oral evidences of the three fact witnesses, it is revealed that (P.W. 1) and (P.W. 2) are relatives. No independent witness has come forward to support prosecution charge. None of the witnesses has said that they stopped the accused from lighting the thatch. Although (P.W. 1) and (P.W. 3) deposed that both the appellants lighted the thatch by spurting their match sticks but the said version seems to be extremely doubtful as no attempt was made by them to douse the flames at the earliest. None of these witnesses had stated that they made any endeavour to take out the articles kept in the thatch or attempted to put it off. No article burnt in the fire was mentioned by(PW1) except a bed and a sari. Vide para 14/15 of her depositions she had not stated that she also endeavoured to douse the fire. Further vide para 18 of her testimony she deposed that "neither I nor the witnesses caught the accused while they were putting the Madaha (thatch ) to fire and only forbade them verbally. When accused were lighting the thatch I made lots of hue and cry that they were burning the thatch". Such a conduct by (PW1) does not inspire any confidence at all. Second fact witness (P.W.2) further stated that when the accused ignited the thatch, he was standing silently and never endeavoured to stop them, which deposition is most un-natural and un-convincing and indicate his most surreal conduct, which does not inspire any confidence. He had further stated that he had not witnessed for how many match sticks, the fire was ignited. (P.W.1) on the aforesaid aspect is also not very reliable because she had also not endeavoured to stop the accused persons when they were endeavouring to set the thatch to fire. This is clear from her deposition vide paragraph 18 of her testimony. Nobody chased the assailants after they were escaping from the scene of the incident. In such a view, I am not inclined to accept the prosecution version as it is difficult to conclude that it is credible and convincing. As noted above, but for oral bald assertions, there is no other surrounding and res gestae evidences to support the prosecution allegations, and hence it cannot be concluded that prosecution has established appellant's guilt beyond all shadow of doubts. 
Appeal is allowed. Conviction of the appellants through impugned judgement and order is hereby set aside. Appellants are acquitted of the charge under section 436 I.P.C. They are set at liberty, they need not surrender, their bail bonds and surety bonds are discharged. 
Let a copy of the judgement be certified to the trial court for it's intimation. 
Dt/-23.2.2012