Court No. - 51
Case :- GOVERNMENT APPEAL No. - 2095 of 1985 Appellant :- State of U.P.
Respondent :- Bharat Singh And Another Counsel for Appellant :- A.G.A.,K.K.Mishra Counsel for Respondent :- A.K.S.Solanki Amicus Curiae, Arun Kumar
Hon'ble Suneet Kumar,J. Hon'ble Brij Raj Singh,J.
1. Heard learned AGA for the State, Sri A.K.S. Solanki, learned Amicus Curiae for respondent No.1 and Sri Arun Kumar, learned counsel for respondent No.2.
2. The appeal is directed against the judgment and order dated 19.02.1985, passed in Sessions Trial No. 547 of 1982 (State Vs. Bharat and Another) under Section 302/34 I.P.C., Police Station-Kotwali, District-Mainpuri, whereby, accused- respondents, namely, Bharat Singh and Vijay Kumar have been acquitted.
3. As per prosecution case, on 31.8.1982 between 6:45-7:00 A.M., Mandhata, son of the complainant, along with, Gyan Singh (P.W.-2) while returning from their shop at Santa Vasanta crossing four accused persons suddenly came out on the lane. Accused-respondents, Vijay and Bharat were having countrymade pistol, the other two accused were unknown. The accused exhorted that it is an opportune time to avenge the death of Veera, consequently, Vijay (accused-respondent No. 1) fired from behind on Gyan Singh (P.W.-2) but the bullet hit the son (deceased) of the complainant (P.W.-1).
4. After investigation, the charge sheet came to be submitted. The accused-respondents were summoned to face trial under Section 302/34 I.P.C. The prosecution to prove the charge examined Bankey Lal (P.W.-1), Gyan Singh (P.W.-2) and Dr.
A.K. Upadhyaya (P.W.-3) (conducted the autopsy on the body of the deceased and proved the Postmortem Report (Ex. Ka-2). S.I., Laxmikant Awasthi (P.W.-4) conducted the Panchnama. P.W.-5, P.W.-6 AND P.W.-7 other formal witnesses who proved the entry of the FIR, F.S.L. Report etc.
5. The accused-respondents on being confronted with the prosecution evidence and the material stated that they have been falsely implicated in this case. They further stated that they were picked up by the police from a shop. The trial court, on considering the prosecution evidence, material and circumstances was of the opinion that the prosecution failed to prove the charge against the accused-respondents beyond any reasonable doubt. Accordingly, the trial court acquitted the accused-respondents. Hence, the present appeal.
6. The incident is alleged to have occurred between 6:45-7:00 A.M. on 31.8.1982, FIR was promptly lodged at 7:45 A.M. As per version of the witnesses, who claim to be present on the spot and chased the accused-respondents, consequently, the accused-respondent Bharat Singh came to be apprehended on the spot along with a countrymade pistol, a fired cartridge and four live cartridges was recovered from his pocket. The deceased was taken on a rickshaw by his father (P.W.-1) to the hospital which was on the way to the Police Station, whereas, apprehended accused was taken by others, including, Gyan Singh (P.W.-2) to the Police Station, thereafter, the concerned Sub- Inspector visited the spot and the hospital. As per prosecution case, there is enmity between Gyan Singh (P.W.-2) and the assailants. Assailants made a plan to eliminate Gyan Singh (P.W.-2) but accidentally the bullet hit Mandhata (deceased).
7. Learned Amicus Curiae submits that the theory set up by the prosecution that the incident had occurred at 7 A.M. and accused-respondent No. 1 was arrested on the spot is not corroborated by the postmortem report. The postmortem was conducted on the same day at 1:45 P.M. i.e. approximately 7 hours from the incident. The small intestine is half full, whereas, the large intestine is full. Further, on external examination it is noted that rigor mortis passed off upper extrimity but present on lower extrimity; "no sign of decomposition present". It is evident from the postmortem report that the time of incident is much prior and earlier to 7:00 A.M. (seven to eight to hours). Further, attention of the Court has been drawn to the statement of Gyan Singh (P.W.-2) who as per the prosecution case was the target of the assailants, stated that he along with the others chased and apprehended the accused-respondent No. 1, and took him to the Thana. In cross- examination he admits that the statement under Section 161 Cr.P.C. was not recorded thereafter at the Thana. P.W.-2 further states that the Investigating Officer recorded his statement after two and half months from the incident. In all probability Gyan Singh (P.W.-2) was not present on the spot and is a chance witness. He further admits that there is enmity with the accused, and accused wanted to avenge the murder of his sister Veera. S.I., Laxmikant Awasthi, (P.W.-4) conducted the Panchayatnama, he categorically stated that he had not recorded the name of the accused in the Panchayatnama.
8. Having regard to the infirmity and the contradictions in the prosecution evidence, in all probability FIR is ante time, it was not lodged at the time of preparing of Panchayatnama. As per the prosecution case, the accused was apprehended along with the weapon and the cartridges and taken to the Thana, the statement of Gyan Singh (P.W.-2) was recorded after two and half minutes; Panchayatnama was prepared after the accused was brought to the Thana, but it does not record the name of the accused in the Panchayatnama. Further FIR was not lodged against the accused-respondent No. 1 (Bharat Singh) under Section 25 of the Arms Act. As per prosecution case, the assault weapon and cartiges was recovered from the accused on being apprehended. The incriminating circumstances is highly improbable.
9. Learned AGA failed to point out any illegality, perversity in the impugned judgment and order.
10. We are unable to persuade ourselves in taking an opinion different from that taken by the trial court in acquitting the accused.
11. In view thereof, the appeal is, accordingly, dismissed. Order Date :- 20.12.2021 Md Faisal (Brij Raj Singh, J.) (Suneet Kumar, J.)