Court No. - 2
1. Case :- GOVERNMENT APPEAL No. - 413 of 2019 Appellant :- State of U.P.
Respondent :- Birbal Yadav And 2 Ors. Counsel for Appellant :- G.A.
With
2. Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 142 of 2021 Appellant :- Shivpujan Respondent :- State Of U.P. And 4 Ors.
Counsel for Appellant :- Om Prakash Singh Sikarwar,Vijay Kumar Tripathi Counsel for Respondent :- G.A.
Hon'ble Suneet Kumar,J. Hon'ble Brij Raj Singh,J.
1. The appeal is directed against the judgment and order dated 30.5.2019 passed by Session Judge, Mahoba in Sessions Trial Nos. 151 of 2015 and 152 of 2015 (State Vs. Birbal Yadav & Others), arsing from Case Crime No. 411 of 2015 under Sections 302/34 & 504 I.P.C. and Case Crime No. 414 of 2015 under Section 25/27 Arms Act, Police Station-Kabrai, District-Mahoba whereby accused respondent Birbal Yadav, Jagdish Yadav and Balram Yadav have been acquitted.
2. Both trials have been connected together and common judgment has been passed by the court below.
3. As per the prosecution case, Durgashankar (P.W.-1) lodged a report mentioning that he is the younger brother of the deceased. As per prosecution case the deceased was returning from his field to his house along with his cattle at 10:00 P.M. in the night of 5.9.2015. The cattle had entered in the premises of accused Birbal Yadav, who started abusing the deceased and shot fire at him with intention to kill his brother (deceased). Vasudev, Jagdish and Balram were also present there. They exhorted him but accused ran away from the place of incident. The incident was seen by Rajjan (P.W.-3) and the deceased was brought to district hospital, Mahoba where he was declared dead by the doctors.
4. After lodging the report the case was handed over to Ramesh Kumar Yadav (P.W.-6) for investigation, who went to the spot and recorded the statement. He prepared the site plan and collected other evidences. The body was also sent for post mortem. The post mortem was conducted on 6.9.2015 at 2:40 P.M. The following injuries were found:
(i) Firearm wound of entry over the chest on left side on the lateral aspect 6cm from the left nipple, 11cm from the midline, 18cm from the umbilicus measuring 2½cm x ½cm oval in shape collar of abrasion. Clotted blood seen. Margins inverted. Tattooing seen around the entry wound in an area of 15cm x 6cm; wound is directed from left to right.
(ii) Firearm wound of exit 2 ½cm x 1cm over the abdomen on right side 15cm from the umbilicus, 18cm from the right nipple, 9cm above the iliac crest (waist). Direction of wound is from left to right mildly downward from entry wound to exit wound; margins of exit wound is everted, clotted blood seen; tissues seen protruding out of the exit wound. Wound seen traversing from entry to exit wound skin subcutaneous tissue, intercostal muscles, chest valve, abdominal cavity passing through the liver.
(iii) Firearm wound of entry over the left arm on postero-lateral aspect 1cm x 1cm in measurement, 19cm below the shoulder tip, 15cm above the left elbow. Blackening and tattooing seen above the entry wound in an area of 8cm x 5cm. Collar of abrasion seen. Margins inverted. Direction of wound from the lateral to medial aspect traversing through skin, subcutaneous tissue, muscles, fascia of abdomen.
5. The cause of death assigned is due to haemorrhage and shock as a result of ante-mortem firearm injuries.
6. Charge-sheet was filed under Section 302/34 and 504 I.P.C. The charge-sheet was also filed under Section 25/27 of Arms Act separately. The Chief Judicial Magistrate, Mahoba took cognizance on Sections 302 and 504 I.P.C. and Section 3/25 of Arms Act on 3.12.2015 and 9.11.2015 respectively. The case was committed on 17.12.2015 for trial. The accused denied the charges framed against him under Section 302/34 and 504 I.P.C. as well as Section 25/27 of Arms Act and they requested for trial.
7. The prosecution side produced witness P.W.-1 (complainant) Durgashankar, Ram Poojan (P.W.-2) Rajjan (P.W.-3) were examined. Hemlata wife of the deceased (P.W.-4) and Dr. R.P. Mishra (P.W.-5) were also examined. The doctor (P.W.-4) stated that he conducted the post mortem. Sub-Inspector, Ramesh Kumar, (P.W.-6) Investigating Officer of the case for offence under Sections 302/34 and 504 I.P.C. was examined thereafter, Inspector Chandrashekhar, (P.W.-7) the last I.O. was also examined and Sub-Inspector, Umesh Kumar (P.W.-8) the I.O. for offence under Section 3/25 of Arms Act was also examined.
8. The accused were afforded opportunity under Section 313 Cr.P.C. he denied all the charges. The accused further stated that they have been falsely implicated on false allegations. He further stated that the witnesses had given false statement. The accused had said that report of laboratory is not worth to be trusted.
9. The trial court conducted the trial and after going through the statement of the witnesses and records, the trial found that prosecution side could not prove the case; thus the accused were acquitted. Hence the present appeal.
10. We have heard the learned AGA and have perused the record. Learned counsel for appellant is not present.
11. Durgashankar (P.W.-1) admitted in his statement before the Court that he reached Mahoba, Hospital at 11:30 P.M. He further stated that he had not gone to the hospital, rather police informed the Station In-charge regarding the deceased being brought to district hospital, Mahoba. The Station In-charge informed P.W.-1. After information P.W.-1 lodged the report. P.W.-1 further stated that he lodged the report on the instruction of the police. The said Tehrir was signed by him. He further stated that he submitted the Tehrir at 2:30 P.M. to police. It is mentioned that the deceased had died in the police station, but the family members had taken the deceased to the district hospital, Mahoba, which appears improbable. The statements of the other witnesses indicate that the deceased was brought to the district hospital, Mahoba, and not to the police station. If the complainant was at the police station, along with the body of deceased, without going to hospital then why he waited to lodge report after getting information of the death of his brother. Durgashankar (P.W.- 1) admitted that he usually resided at another place i.e. Kabrai where he manages his business.
12. It is our opinion that the prosecution case is doubtful, it was stated that while the deceased was returning with his cattle at 10:00 P.M., P.W.-1 reached the place of incident. The accused (Birbal Yadav) abused him and shot fire. The other brothers of accused namely Vasudev, Balram and Jagdish were present and they exhorted the accused. The incident was seen by Rajjan (P.W.-3) and complainant (P.W-1). The deceased was brought to the district hospital, Mahoba. The FIR does not indicate that P.W.-2 Ram Poojan and Hemlata (P.W.-4) had reached the spot which is evident from statement of P.W.-1 and P.W.-3. Thus the prosecution case becomes highly doubtful in the backdrop of serious contradiction.
13. Durgashankar (P.W.-1) has stated in cross-examination that he was residing in Kabrai along with his family and doing business. He has further stated that in the village his wife and other family members reside. He stated that he had identified the accused in the moonlight. In cross-examination he has stated that he brought his brother to the police station , in contradiction to the version of the FIR. He further stated that on being shot, at his brother fell on the ground, but no blood was found at the site. He deposed that he reached to the spot after 2 ½ minutes after the incident, the statement appears to be doubtful. In cross examination because he stated that he was just 2-4 feet away from the deceased. The I.O. (P.W.-6) clearly stated that he had not seen any electricity bulb or any electricity pole. The testimony of P.W.-2 and P.W.-3 was declared unreliable by the trial court. P.W.-3 had stated that there were 3-4 persons and he had not identified the other three persons except the deceased in the moonlight but according to the I.O. (P.W.-6) there was no source of light.
14. (P.W.-3) stated that he brought the deceased to the district hospital, Mahoba, as against the FIR version that the deceased was brought to the police station. As per statement of P.W.-3 the place of incident was different, he stated that the deceased went inside the corral (Bara) place of incident, and after two minutes, he heard sound of gunshot and reached the place of incident. He stated that he saw the deceased lying on the ground. The statement does not indicate that Durgashankar (P.W.-1), Ramshree Dutt and Rajjan (P.W.-3) were together, whereas P.W.-1 in contradiction has stated that they were going together.
15. Ram Poojan (P.W.-2) and Hemlata (P.W.-4) are brother and wife of deceased respectively, and there is no statement of fact that they were present on the spot. The investigating Officer had not mentioned their names in the first statement under Section 161 Cr.P.C., either in the statement of complainant (P.W.-1) or Rajjan (P.W.-3.). Ram Poojan (P.W.- 2) had admitted that he had come to the village on Janmashtami though he is resides in a temple at Noida. He stated that when he reached the village, Rajjan (P.W.-3) and Durgashankar (P.W.-1) had seen him but, both witnesses Durgashankar (P.W.-1) and Rajjan (P.W.-3) had not made any statement of presence of Ram Poojan under Section 161 Cr.P.C.; the presence of P.W.-2 is doubtful. The presence of Hemlata (P.W.-4) was also not mentioned by the aforesaid witnesses.
16. Dr. R.P. Mishra (P.W.-5), Ramesh Kumar Yadav (P.W.-6), Inspector Chandrashekhar (P.W.-7) and Umesh Kumar (P.W.-8) are formal witnesses who were also examined.
17. The I.O., (P.W.-6) could not prove the recovery of the weapon. In cross-examination he stated that the recovery fard was made before him but the same is not before him. He had not made the site plan after arresting the accused when he went to to recover the weapon. He could not indicate the date when he made his signature on the fard baramadgi. He could not state as to when he proceeded from the police station to the place of recovery. There was no independent witness of recovery. Since the place of recovery was not mentioned, the recovery becomes doubtful.
18. The statements of the witnesses are contradictory to each other. The prosecution case becomes highly doubtful the finding returned by the trial court calls no interference. The prosecution has miserably failed to prove the case beyond reasonable doubt.
19. Accordingly the application (Leave to Appeal) qua Government Appeal No. 413 of 2019 is rejected. The appeal, as well as, Criminal Appeal U/S 372 Cr.P.C. No. 142 of 2001 are accordingly, dismissed.
Order Date :- 29.10.2021 Md Faisal (Brij Raj Singh, J.) (Suneet Kumar, J.)