Court No. - 51
Case :- GOVERNMENT APPEAL No. - 692 of 1985 Appellant :- State of U.P. Respondent :- Kamla And Others Counsel for Appellant :- A.G.A.
Counsel for Respondent :- Pradeep Chandra, Pratik Chandra
Hon'ble Suneet Kumar,J. Hon'ble Brij Raj Singh,J.
1. Heard learned A.G.A. appearing for the State and Shri Pradeep Chandra, learned counsel appearing for the accused- respondents and perused the lower court record with the assistance of the learned counsel for the parties.
2. The instant appeal has been filed against the judgment and order dated 26 November 1984 passed by Special Judge (E.C. Act), Additional Sessions Judge, Jalaun at Orai in Criminal Sessions Trial No. 151 of 1983, acquitting the accused respondents.
3. As per prosecution case, on 25 June 1983, informant Bhanu Pratap Singh (P.W.-1), along with Dhani Ram a resident of village were sitting on a platform (Chabutra) of Swami Deen Bhartiya. The deceased Shambhu Dayal, father of the informant, came and joined them and they started talking; 10-
15 minutes later at 4:00 pm, the nominated accused armed with Kulhadi, Lathi and accused Bhagat was having double barrel gun, on exhortation by accused Kamla, Bhagat Singh fired and caused firearm injury killing Shambhu Dayal on the spot. The FIR came to be lodged at 4:30 pm on the same day. On subsequent day, the body was received by the Doctor at 8:40 am for postmortem but the FIR and other papers was received at 10:45 pm. After investigation, charge-sheet came to be filed against the accused-respondent. The trial court summoned the accused to face trial under Section 302 and 34 IPC.
4. The prosecution to prove the charge examined P.W.-1 Bhanu Pratap Singh (complainant), P.W.-2 Dhani Ram, P.W.-3 Sub Inspector Ram Narain Singh, P.W.-4 Dr. LC. Gupta, P.W.-5 Sub Inspector K.D. Tripathi.
5. The accused on being confronted with the prosecution evidence, denied the charge and stated that they have been falsely implicated in the instant case due to enmity. The trail court on considering the prosecution witnesses and the material placed during trial was of the opinion that the prosecution failed to connect the accused-respondents with the commission of the offence. Accordingly, acquitted them. Hence, the instant appeal.
6. The trial court on scrutinizing the evidence and material was of the view that the FIR is ante time, the incident had occurred at some other place; the prosecution witness of fact P.W.-1 and P.W.-2, who are close relatives were not present on the spot. The deceased was a criminal and convicted for life in an another case. The court opined that having regard to the medical expert opinion, the incident had occurred at an earlier point of time and not in the presence of P.W.-1 and P.W.-2. It is not in dispute that the prosecution had not examined any independent witness, the spot of the incident is a busy place and at regular intervals passenger bus stops at the spot. Further, as per statement of P.W.-1 no person was available in the house at the platform where they were sitting, nor, in the house adjacent or opposite to the platform, which is improbable in a village. P.W.-2 throughout the trial had not disclosed his relationship with P.W.-1, the defence produced pariwar register and entry in revenue records to show that P.W.-2 was an interested witness and deliberately suppressed his relationship with P.W.-1.
7. As per prosecution case, Sripath, an independent witness, was present on the spot along with P.W.-1 but he was not examined. Further, it has come in evidence that the skull of the deceased was blown up which was admitted by P.W.-2 but this fact was not disclosed by P.W.-1 either in the FIR or in his statement recorded under Section 161 Cr.P.C. P.W.-1 in his examination-in-chief also did not disclose this fact, though he claims to be present with the deceased. As per statement of Investigating Officer, he did not find any piece of brain scattered on the spot, although he reached the spot within hour. No part of the skull was found in the vicinity, it is not the case of the prosecution that they had found any pellet or empty cartridge (khokha) form the site of the incident.
8. The medical expert admitted that there was no blackening, tattooing and charring. He doubted that the injury could have been caused by firearm alone but it could also have been caused by other weapons, including, country made bomb. The postmortem report shows that the stomach was empty and foodgrains were found in the large and small intestine. As per statement of P.W.-1, he and deceased were at the home around 12:00-1:00 pm and he further stated that he had lunch but was not aware whether the deceased had lunch. It cannot be said that the deceased might not have consumed food.
9. In the circumstances, the trial court was of the opinion that the incident had occurred at some other place, FIR is ante time and the nature of the injury as set up by the prosecution is not supported by the medical expert opinion. The presence of P.W.-1 and P.W.-2 becomes doubtful.
10. In the circumstances, the prosecution failed to prove beyond reasonable doubt, so as to connect and link the accused-respondents in the commission of the offence.
11. Having due regard to the prosecution evidence and material, we are unable to persuade ourselves to take an opinion different from that taken by the trial court. Accordingly, the leave to appeal application stands rejected.
12. In consequence the government appeal is dismissed.
Order Date :- 23.12.2021 S.Prakash (Brij Raj Singh,J.) (Suneet Kumar,J.)