Chief Justice's Court
Case :- CRIMINAL APPEAL No. - 1738 of 1983 Appellant :- Gyan Respondent :- State of U.P.
Counsel for Appellant :- R.B.Sahai,Ajay Kumar Pandey,Anil Kumar Mishra Counsel for Respondent :- Dga,Anand Bhaskar Srivastava,Jaiprakash Narain Raj Connected with Case :- CRIMINAL APPEAL No. - 1741 of 1983 Appellant :- Ram Prit And Another Respondent :- State of U.P.
Counsel for Appellant :- R.B.Sahai,V.K. Baranwal Counsel for Respondent :- Dga,A.G.A.,Anand Bhaskar Srivastava,Jaiprakash Narain Raj
Hon'ble Govind Mathur,Chief Justice Hon'ble Vivek Varma, J.
This appeal is preferred to question correctness of the judgment dated 26th July, 1983 passed by learned IV Additional Sessions Judge, Deoria in Sessions Trial No.612 of 1981.
Under the judgment impugned, learned trial court convicted the accused Gyan for an offence punishable under Section 302 Indian Penal Code and sentenced him to undergo life term imprisonment. Other accused Ram Prit and Prasidh Narayan were held guilty for commission of offence punishable under Section 302 read with Section 34 Indian Penal Code and they were also sentenced to undergo imprisonment for life term.
During pendency of this appeal, accused Prasidh Narayan has already been died as such the appeal against him stands abated.
The case of the prosecution is that on 8th December, 1979 a first information report was lodged at Police Station Gauri Bazar, Deoria at the instance of Moti Chand, S/o Govardhan (PW1) with assertion that his brother Sanwaru (deceased) at around 7.30 pm came to his house and made space to park his vehicle wherein he used to transport straws and husk. He parked the same closed to the house of Paras Mani. At that time, a bomb was shot on him by Gyan on exhortation by Ram Prit and Prasidh Narayan. Gyan also tried to throw a second bomb but that blasted in his own hand. As a consequence to the blast, his brother Sanwaru died. On basis of the information aforesaid, a case was lodged for commission of an offence punishable under Section 302 Indian Penal Code against the accused persons. During course of the investigation, a site plan was prepared and statements of relevant witnesses were drawn as per provisions of Section 161 of the Code of Criminal Procedure, 1973. The corpus of deceased Sanwaru was subjected to an autopsy conducted by Dr. K. Singh (PW5). After completing the investigation a police report was filed before the competent court and matter was committed to the court of sessions being triable by that. Learned sessions court framed charges against the accused persons for commission of an offence against accused Gyan under Section 302 Indian Penal Code and against two other accused persons for commission of offence under Section 302 read with Section 34 Indian Penal Code. On denial of charges, trial commenced, as desired.
The prosecution supported its case with the aid of 14 witnesses and by exhibiting several documents. Out of the 14 witnesses, 4 witnesses, namely, Moti Chand (PW1), Balwanti, W/o Sanwaru (PW2), Nata (PW3) and Ratiya, W/o Nata (PW4) were cited as eye-witnesses. Out of the four eye-witnesses named above, Nata and Ratiya did not support the prosecution story but they were also not declared hostile. Dr. K. Singh (PW5) adduced medical evidence as he conducted autopsy on the corpus of deceased Sanwaru and submitted post mortem report (Ex.Ka.11). Jaimurti Pandey (PW14) narrated the facts relating to the steps taken by him during the course of investigation being Investigating Officer.
Opportunity was accorded to the accused-appellants to explain the adverse and incriminating circumstances existing in prosecution evidence against them. The accused persons termed the entire evidence as false, concocted and adduced due to personal vengeance. Accused Gyan stated that while coming out from Sarab Gali, he was attacked by two persons and they also snatched a sum of Rs.500/- from him. Statement of Ram Dutt Tiwari, Kailash Nath Dixit, Khedan and Janardan Singh were recorded in defence as DW1, DW2, DW3 and DW4 respectively. Learned trial court after examining the evidence available on record held the accused-appellants guilty for the charges levelled against them and sentenced accordingly.
In appeal, at the first, learned counsel states that a reasonable doubt exists in accepting prosecution story in view of the fact that two independent eye-witnesses have not supported the same and further the evidence adduced by remaining eye-witnesses suffers from serious contradictions. In alternative, it is submitted that even if it is assumed that so called bomb was thrown by the accused Gyan, then the same was having such a low strength that the injuries received were simple. It is further stated that in medical evidence no cause of death too is given by the doctor, as such the offence, if any committed, that does not travel beyond an offence defined under Section 304 IPC.
According to learned counsel, the trial court failed to appreciate that even as per prosecution story the second bomb blasted in the hands of accused Gyan and he too was having minor injuries.
Per contra, learned Additional Government Advocate states that the deceased had serious injuries on his head and even there was a fracture in his temporal bone. In parietal region also serious fractures occurred and those were sufficient to cause death in natural course of life.
Heard learned counsels, considered the argument advanced and also perused the entire record.
As already stated, the prosecution supported its case with the aid of four eye-witnesses out of whom, two Nata (PW3) and Ratiya (PW4) did not support the same. So far as Moti Chand (PW1) is concerned, he is younger brother of deceased Sanwaru. As per this witness, at about 7.30 pm on the fateful day his brother who was residing in a separate house came near to the house of Paras Nath and Nata (PW3). On arriving at the place, he parked his vehicle and at that time a bomb was thrown on him by Gyan on exhortation of Prasidh Narayan. This witness at the time of incident was warming himself while sitting close to Cowda. Nothing has been stated by this witness that how he saw the entire incident and what was his location at the relevant time. In the site plan Ex.64ka/1 location of this witness has not been shown. This witness or the Investigating Officer have also not said anything about the source of light in which this witness could have seen the entire incident. Same is the position with the evidence adduced by Smt. Balwanti (PW2). As per this witness, her husband Sanwaru (deceased) at the time of incident was involved in conversation with Ratiya. Ram Prit, who was at some distance exhorted to kill her husband and in response thereto, Gyan thrown the bomb. Pertinent to state that according to this witness the incident took place after midnight, whereas according to the prosecution story and as stated by PW1. The incident occurred at 7.30 pm. Be that as it may, it is not in dispute that the incident occurred in the night of the month of December and to establish an incident occurred in such dark night, an important responsibility on prosecution was to establish the location of the eye-witnesses and the source of light in which they were in position to witness the entire happening.
In the case in hand, both the prosecution eye-witnesses failed to utter single word in this regard. The documents cited by the prosecution too does not mention anything with regard to location of the eye- witnesses and availability of the source of light. These facts acquired more importance in view of the fact that Nata (PW3) and Ratiya (PW4) have not supported prosecution story. As per Balwanti (PW2) at the time of incident Sanwaru was in conversation with Ratiya (PW4) but Ratiya has not uttered anything of such nature. As per Ratiya, at about 9.00 pm on the fateful day an incident occurred at the distance of 10-15 steps from her house and at that time she was sleeping after having meals. In quite specific terms this lady stated that she did not witness anything.
In entire prosecution evidence, the factum of injuries received by accused-appellant Gyan reflects his presence at the place of incident but merely on that count, it cannot be accepted without having any reasonable doubt that he threw the bomb that caused fatal injuries to Sanwaru. A reasonable doubt exist in accepting prosecution case.
In view of whatever stated above, we are inclined to accept this appeal. Accordingly, the same is allowed. The judgment impugned dated 26th July, 1983 passed by IV Additional Sessions Judge, Deoria in Sessions Trial No.612 of 1981 is set aside. The accused-appellant are acquitted from the charges levelled against them. The surviving appellants were enlarged from state custody under orders of this Court after furnishing bail bonds and sureties. The same are hereby discharged.
Order Date :-17.12.2019 Bhaskar (Vivek Varma, J.) (Govind Mathur, C.J.)