Court No. - 47
Case :- GOVERNMENT APPEAL No. - 945 of 1994 Appellant :- State Of U.P.
Respondent :- Dhirendra @ Vikky Pawar And Others Counsel for Appellant :- A.G.A.
Counsel for Respondent :- Nipun Singh
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Anil Kumar-IX,J.
Heard Shri Rajesh Kumar Mishra, holding brief of State of Uttar Pradesh, Shri Manish Tiwari and Shri Nipun Singh learned counsel for respondent no. 3 (Jitendra).
This government appeal has been filed from the judgment of acquittal dated 02.03.1994 passed by Vth Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. 242/ 1986 (State of Uttar Pradesh Vs. Direndra @ Vikky Pawar and others) for the offence under Sections 147, 148, 307 read with Section 149 I.P.C., Police Station- Budhana, District- Muzaffarnagar.
According to the prosecution, the incident is alleged to have taken place on 30.01.1986 at 2:00 p.m., while the F.I.R. was lodged on that very date at 3:10 p.m. In the F.I.R., it has been stated that the informant Surendra Kumar Tyagi along with his brother Narendra, who has a business of taking contract in excise matters, was going to tehsil sardana for obtaining the solvency certificate. As soon as his car reached near Baraut road (chamre ki paith), one ambassador car came from behind and after overtaking, the accused stopped the car. Then the accused came out of their ambassador car and Prem, Jitendra, son of Atmaram and three unknown accused started opening fire from their respective country-made pistols, due to which Narendra Tyagi received injuries. The injured Narendra Tyagi was examined by Dr. Radhey Shyam PW-3 on 30.01.1986 at 4:40 p.m. and in the injury report following injuries were found on his person :-
(i) Multiple lacerated wounds 5 x 5cm. on the left side of chin.
(ii) Abraded contusion 7 x 6 cm. towards front portion of the right shoulder.
(iii) Entry wound of bullet 5 x 2 cm. on the left side of the chest 9 cm. from the nipple in 11 O' clock position with blackening and scorching. X-ray examination was advised.
(iv) Bullet wound through and through in the area of 7 x 5 cm. in the root of the small finger of the hand. There was blackening and scorching on it. X-ray examination was advised.
(v) Multiple lacerated wounds in an area of 3 x 5 cm. in front of the fore arm 8 cm. above the wrist. X-ray examination was advised.
(vi) Two lacerated wounds ½ cm. x ½ cm. in front of the left thigh 10 cm. above the knee. X-ray examination was advised.
(vii) Entry wound of bullet 5 x 3 cm. in front of the left thigh 8 cm. above the left knee. Blackening and scorching was present.
(viii) Exit wound of bullet 3 x 4 cm. in front of the left thigh 10 cm. above the knee, which is of injury number 7. X-ray examination was advised.
In order to prove the prosecution story, prosecution examined Narendra Kumar Tyagi (injured) PW-1, Satendra Kumar PW-2 as witnesses of fact. Dr. Radhey Shyam Gupta PW-3, Dr. J.R. Jiyani PW-4, Constable Rishi Pal PW-5, Constable Dheer Pal Singh PW-6 and Om Prakash PW-7 were examined as formal witnesses.
After hearing counsel for the parties and considering the evidence on record, the trial court found that although in the F.I.R., three accused were named and three other accused were not named, but in the statements of witnesses, name of four known accused and three unknown accused were disclosed. It is admitted by the witnesses that Dhirendra son of Atmaram was known to the informant prior to the incident, but no reason has been given for not naming Dhirendra and Atmaram in the F.I.R. The medical report is not corroborated by the ocular testimony of the witnesses and therefore incident as alleged, is not proved. There is a chance of false implication due to business rivalry between the parties. On these findings, trial court has acquitted the accused from the charges levelled against him. Hence, this appeal has been filed.
We have considered the arguments of learned counsel for parties. One of the reasons recorded by trial court is that on the body of Narendra Kumar Tyagi, four injuries were found to be caused by blunt object, although none of the witnesses has stated that any of the accused used blunt object or caused injury by the butt of the gun. Four injuries were remained unexplained by the prosecution, which casts a doubt in respect of prosecution story. This finding of fact does not suffer from any illegality, inasmuch as injury nos. 1, 2, 5 and 6 are not caused from firearm injury, rather it is injuries of blunt object. None of the witnesses have stated about the injury being caused to injured by blunt object. Thus, oral testimony is not corroborated with the medical evidence. The incident is alleged to have taken place on 30.01.1986 and as about 33 years is going to expire, no useful purpose will be served in admitting the appeal.
In view of above, this application seeking leave to appeal is, accordingly rejected and consequently the appeal is also dismissed.
Order Date :- 19.12.2018 Sharad/-