Court No. - 47
Case :- GOVERNMENT APPEAL No. - 5227 of 2006 Appellant :- State Of U.P.
Respondent :- Gajraj And Others Counsel for Appellant :- V.S.Mishra,G.A.
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Anil Kumar-IX,J.
Heard Sri Rajesh Kumar Mishra, learned brief holder for the State of U.P.
This appeal of acquittal has been filed from the judgment of Additional & Sessions Judge/Fast Track Court No.3, Badaun dated 11.5.2006 passed in ST No.15 of 2004 arising out of the Case Crime No. 97 of 2003 under Section 302/34 IPC and ST No.16 of 2004 arising out of Case Crime No.110 of 2003 under Section 25 of Arms Act, PS. Alapur District Badaun.
The incident is alleged to have been taken place on 29.4.2003 at 1.30 AM and the FIR was lodged on 29.4.2003 at 12.50 hours. In the FIR, it has been stated that 20 days ago of the incident, Lajja Ram the brother of complainant has a quarrel with the accused due to playing Deg and 28/29.4.2003 Har Prasad father of the complainant was sleeping at his Khaliyan by the side of the village then in the night, the accused came there and fired upon him, on hearing the sound of the fire, the mother of the complainant namely Smt. Heera Devi and wife of the complainant namely Chetana, reached on the spot and saw the incident.
In order to prove prosecution case, the prosecution examined Prakash PW-1, Heera Devi PW-2, Chetana PW-3, Dr. A.K. Verma PW-4, Hawaldar PW-5, Head Constable Nirjan Singh PW-6, S.I. Ramvir Singh PW-7, Constable Sundar Lal PW-8, Constable Rajdev Ram PW-9 and S.I. Hariram Nagar PW-10. Out of these witnesses Prakash, Heera Devi and Chetana PW-1, 2 and 3 respectively are witnesses of the fact.
If the trial court by the impugned order found that according to the own allegation, Prakash was sleeping in the field where he was protecting his crops, he was not on the place of incident and he came on the spot in morning. Then his statement is not relevant to prove the charges against the accused. So far as Smt. Heera Devi PW-2 and Smt. Chetana PW-3 are concerned, they were sleeping at their house. While the deceased was sleeping at Khaliyan by the side of the village, it was not possible for them to hear the sound of fire and come on the spot and recognize the accused. There is no evidence to prove that the murder of Har Prasad was caused by the accused.
We have considered the arguments of the learned counsel for the appellant. It is admitted to Prakash PW-1 that he was sleeping in the filed, which was quite long distance from the place of the occurrence and he came to know about the incident in the morning. Thus, from his statement, the involvement of the accused in the offence is not proved. In the First Information Report, it has been alleged that Prakash was sleeping at Khaliyan by the side of the village. Thus, according to the statement of Smt. Heera Devi and Chetana PWs- 2 & 3, they were sleeping at her house. It was not possible for them to hear the sound of the fire and come on the spot. From the fact that they did not make any effort to inform in the night about the incident. It is proved that till morning they did not come to know about the incident. Thus, the trial court has not committed any illegality in regard to the statement of Heera Devi and Chetana PWs- 2 & 3.
The reason assigned by the trial court is a cogent reason and no interference can be made by this Court.
In view of above, this application seeking leave to appeal is, accordingly, rejected and consequently the appeal is also dismissed.
Order Date :- 24.1.2019 Ashutosh Pandey