Court No. - 47
Case :- GOVERNMENT APPEAL No. - 6951 of 2006 Appellant :- State Of U.P.
Respondent :- Hari Singh And Others Counsel for Appellant :- Govt.Advocate
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Anil Kumar-IX,J.
Heard Additional Government Advocate on behalf of appellant-State of U.P.
This government appeal has been filed from the judgment of acquittal dated 27.07.2006 passed by Additional Sessions Judge, Court No. 4, Bulandshahar in Sessions Trial No. 547 of 1995 (State of Uttar Pradesh Vs. Hari Singh and another) for the offence under Sections 302/34 and 201 I.P.C.
The incident is alleged to have taken place on 24.02.1995. The F.I.R. was lodged after recovery of dead body on 24.02.1995 at 20:15 hrs. According to the prosecution story as said in the F.I.R. deceased Lekhraj used to work on the brick-kiln alongwith his son Budh Sen (informant) from about two months prior to the incident and used to live in a cottage at brick-kiln itself. The deceased used to do the work of enchanting also and in that connection he had enchanted the daughter-in-law of accused Hari Singh and mother of accused Vijay Singh. In respect of that there was some altercation between deceased and accused (Hari Singh & Vijay Singh) 3-4 days prior to the incident. On 23.02.1995 at about 3:00 p.m. Hari Singh and Vijay Singh took away deceased Lekhraj from his cottage on the pretext of drinking liquor. The accused Hari Singh and Vijay Singh came back at brick-kiln on 23.02.1995 at about 8:00 p.m. but the deceased Lekhraj did not come back. When query was made from accused in respect of deceased Lekhraj by Budh Sen (informant) then they informed that he remained at Sikandarabad and would stay there in night.Therefore, they were searching the deceased and his dead body was found on 24.02.1995 at 6:00 p.m. in the gallery of old temple, situated in the forest on the back side of Shivaji Nagar in the west of Dankaur road, Sikandarabad. There was injury on the face of deceased, it has been alleged that the accused had committed murder and concealed the dead body in the temple.
In order to prove the prosecution case, the prosecution examined PW-1 Budh Sen (Informant) son of deceased, PW-2 Naththu Singh in whose presence, it was alleged that the accused had taken deceased on 23.02.1995, PW-3 Dan Veer who scribed the F.I.R., PW-4 Gyan Singh in whose presence the deceased was taken, PW- 5 Narendra Singh, who was a formal witness, PW-6 Dr. Arun Kumar, who proved the post mortem report and PW-7 Sub- Inspector M.P. Singh, Investigating Officer.
After considering the evidence on record, trial court found that there is contradiction between the statements of witnesses in respect of time of taking deceased by the accused on 23.02.1995. In the F.I.R., it has been stated that at the time of taking the deceased by the accused Ved Prakash, Naththu Singh and Dan Veer were present but Ved Prakash and Dan Veer had not been produced, only Naththu Singh had been produced. The motive of the incident is very weak. From the post-mortem report, the time of death of the deceased comes at 24.02.1995 at 4:00 a.m. which is not corroborated with the prosecution case. On these finding, the respondents were acquitted from the charges levelled against them. Hence, this appeal has been filed.
We have considered the arguments of Additional Government Advocate and examined the record. This case is based on circumstantial evidence as such motive has important role to play. Motive for the incident as alleged is that the deceased was enchanting 'Mantra' etc. and in that connection he had enchanted Rama Devi mother of Vijay Singh and Laxmi daughter-in-law of Hari Singh. In that connection, some quarrel has taken place between the accused and deceased 3-4 days prior to the incident. In the circumstances, it appears to be highly improbable to the deceased to go with the accused for drinking liquor, while he had quarrelled with the accused 3-4 days prior to the incident.
The trial court has noticed that according to Budh Sen PW-1 the deceased was taken on 23.02.1995 at 3:00 p.m. while according to Naththu Singh PW-2, the deceased was taken on 23.02.1995 at 12 'Noon'. This was material contradiction in respect of taking the deceased by the accused.
It is admitted to Budh Sen PW-1 that the accused had come back on the brick-kiln at about 8:00 p.m. on 23.02.1995. The time of death of deceased comes as 24.02.1995 at 4:00 a.m. Thus, there was about eight hours difference and the possibility that anyone else might have killed the deceased in a drunken position, could not be ruled out. As such, the conviction of the appellant on the basis of circumstantial evidence is not proper. There is no need to admit this appeal.
In view of above, this application seeking leave to appeal is, accordingly rejected and consequently the appeal is also dismissed.
Order Date :- 27.11.2018 Sharad/-