Court No. - 1
Case :- GOVERNMENT APPEAL No. - 372 of 2018 Appellant :- State Of U.P.
Respondent :- Tezram Counsel for Appellant :- G.A.,Neeraj Tripathi Counsel for Respondent :- Atul Kumar,Atul Kumar with Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 372 of 2017 Applicant :- Mahipal Opposite Party :- Tez Ram & 3 Others Counsel for Applicant :- Kamla Kant Srivastava,Rajesh Kumar Srivastava Counsel for Opposite Party :- G.A.,Atul Kumar
Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Rajesh Kumar Srivastava, learned counsel for the appellant, Sri Atul Kumar, learned counsel for the respondents and Sri J.P. Tripathi, learned AGA for the State.
The present Government appeal and leave to appeal u/s.
372 Cr.P.C have been filed by the State and the complainant respectively against the judgment and order dated 09.10.2017 passed by Additional Session Judge, Court No.8, Muzaffar Nagar in Sessions Trial No. 1282 of 2008 arising out of Case Crime No. 839 of 2007, PS. Khatauli, Muzaffar Nagar.
The prosecution case in brief is that the informant Mahipal has alleged in the F.I.R, which was lodged by him that his son Pramod Kumar had gone on 14.09.2007 at about 9.00 a.m. from his house to Khatauli when he did not return back to his house, the informant started searching his son at his relatives' place but his whereabouts could not be traced out. Hence, he lodged a missing report on 18.09.2007 at P.S. Khatauli, District Muzaffarnagar. After lodging the missing report, Bhishm s/o Prahlad, Ramvir, s/o Prem Singh informed the informant that in the evening of 14.09.2017, they had seen Pramod alongwith Kallu s/o Jamu Teli, Vikas s/o Jai Karan, Vishnu Giri s/o Atar Giri, Chhote s/o Kabul Teli, all residents of Bhangela near the field of Mange Ram which is situated near Shiv Mandir. Thereafter, the informant alongwith Harvir s/o Satpal, Mahkaar s/o Jaipal, Devendra s/o Jai Singh of his village, went to the house of Kallu Teli and Chhote Teli at village Bhangela where Pramod used to visit but none was found at their house and their family members informed them that both of them have gone outside for work. On 30.09.2007, when the brother of informant namely Ram Pal and cousin brother Tej Ram went to search Pramod towards the agricultural field of Khilari Pandit, they found a check shirt of green colour near the old well situated in the said field and when they peeped inside the well, they saw some magets and hairs inside the well. Thereafter, Tej Ram and Ram Pal came back to the village and informed about the said fact to the informant and on again reaching the place where the said well was situated, they found that the dead body which was lying inside the well was identified to be that of his son Pramod. Thereafter, F.I.R. was lodged by him on 30.09.2007 at P.S. Khatauli, District Mujaffarnagar, which was registered as Case Crime No. 839 of 2007 against Kallu s/o Jamu Teli, Vikas s/o Jai Karan, Vishnu Giri s/o Atar Giri, Chhote s/o Kabul Teli all residents of Bhangela under Section 302/201 I.P.C. The investigation of the said case was carried out by Inspector Vijay Singh, Kotwali Nagar, Muzaffarnagar who recorded the statements of the informant and eye-witnesses under Section 161 Cr.P.C. and prepared the site plan of the place of occurrence and other police papers.
During the course of investigation, second investigating officer, Dharmendra Singh recorded the statements of Smt. Shubhwati, Santar Pal, Mahipal, Jagat Pal, Prem Singh, Jile Ram, Hukum Singh and Jagat Singh, all of village Titoda under Section 161 Cr.P.C. on the basis of which it was transpired that accused-respondents Tej Ram, Ravindra, Anuj @ Tarun Kumar and one Gulzar were involved in the murder of Pramod, hence, chargesheet was submitted against the accused-respondents under section 147, 148, 149, 302, 201 I.P.C. before the competent Court. The case was committed to the Court of Sessions by the learned Magistrate and the trial court framed charges against accused respondents Tej Ram, Ravindra @ Ravi, Anuj @ Tarun Kumar on 21.10.2008 for offences u/ss. 147, 148, 302/149, 201 IPC who denied the prosecution case and claimed trial. The prosecution, in support of its case, examined PW1 Mahipal, informant of the case, PW2 Jile Ram, PW3 Santrapal, PW4 Jagat Singh, PW5 Constable Lokesh Kumar, PW6 Dr. Arun Kumar, PW7 Kalicharan Verma, PW8 ASI Chandra Shekhar, PW9 Dharmendra Singh Sirohi, PW 10 Brajpal Singh and PW 11 M.P. Ashok. The accused/respondents, in their statement u/s. 313 Cr.P.C have stated that they had no knowledge of the missing report lodged by informant and that the informant has falsely deposed against them but they did not produce any documentary evidence in support of defence. Learned trial Court after examining the prosecution witnesses and other material on record acquitted the accused/respondents on the ground that prosecution failed to prove its case beyond reasonable doubt against the appellants. Hence, the present appeal by the State and the complainant against the judgment and order passed by the trial Court.
It has been argued by learned AGA as well as learned counsel for the complainant that though there was evidence of PW1 Mahipal, PW2 Jile Ram, PW3 Santarpal and PW4 Jayant Singh who have deposed against the accused/respondents but the trial Court misread the evidence and has acquitted the accused/respondents of the charges framed against them.
Learned counsel for the complainant further submitted that on the information given by the accused/respondent Tej Ram, the informant lodged an FIR against the accused persons named in the FIR which were exonerated during the course of investigation as the accused/respondent Tej Ram tried to mislead him regarding the murder of his son but subsequently when the statements of PW2, PW3 and PW4 were recorded, they disclosed the involvement of accused/respondent Tezram in the murder of his son Pramod. Hence, he argued that the acquittal of the accused/respondents by the trial Court be set aside and the accused persons be punished, convicted and sentenced by this Court.
Learned counsel for accused/respondent nos. 1 to 3 vehemently opposed the arguments of learned counsel for the complainant and that of learned AGA and stated that initially, the FIR was lodged by the informant Mahipal against Kallu s/o Jamu Teli, Vikas s/o Jai Karan, Vishnu Giri s/o Atar Giri, Chhote s/o Kabul Teli who are all residents of Bhangela but subsequently, during the course of investigation, after three months, on the basis of statements of PW2, PW3, PW4 recorded u/s. 161 Cr.P.C who have also filed affidavits before the investigating officer disclosing the involvement of accused/respondent no.1. He further stated that so far as PW2 Jile Ram is concerned, the accused/respondents are said to have made extra judicial confession before him confessing the guilt and further PW3 Santarpal has deposed that he has seen accused/respondents Tejram and Ravindra @ Ravi and one unknown person in a puzzled state of mind and blood was also seen on their clothes and when he asked from accused Tej Ram and Ravindra @ Ravi about the blood on their clothes, he was threatened by them for dire consequences of his life on account of which, he got frightened and went to his house and did not disclose about the incident to any person. He further submits that so far as PW4 Jagat Singh is concerned, he is the witness of last seen as he saw the deceased Pramod with accused/respondent no.3 Anuj Kumar @ Tarun Kumar in a tempo at 06.00 p.m. in the evening of 14.09.2007 and Pramod alighted from the tempo on the stand where he met accused/respondent Tej Ram and his son Ravindra, Gulfam and one unknown person and all of them went towards the village Bhangela.
It was argued by learned counsel for accused/respondents that from the statement of PW9 Dharmendra Singh Sirohi who was the investigating officer, it is evident that accused Gulzar was found confined in jail from 12.09.2007 to 11.10.2007 in Case Crime No. 40 of 2006 u/s. 498A, 323, 506 IPC and 3/4 D.P. Act, PS. Gulawati, District Bulandshahar. The said fact was endorsed in parcha No. 29 dated 20.02.2008 of the case diary which was verified and found to be correct. Hence, naming of the accused/respondent nos. 1 to 3 was also found to be an after thought in the statement of PW2 Jile Ram, PW3 Santerpal and PW4 Jagat Singh who have given affidavit to the investigating officer after three months of the incident. He submitted that the trial Court after perusing the evidence on record has rightly acquitted the accused/respondents, hence, the present appeal is devoid of merits and the same be dismissed.
After having heard learned counsel for the parties and perusing the record, we find that initially, the FIR was lodged by PW1 Mahipal against four accused persons namely Kallu s/o Jamu Teli, Vikas s/o Jai Karan, Vishnu Giri s/o Atar Giri, Chhote s/o Kabul Teli, subsequently, name of accused/respondents along with co-accused Gulzar came into light in the statements of PW2, PW3 and PW4. Moreover, appellant/accused Tez Ram is said to have given extra judicial confession before PW2 Jile Ram confessing the guilt before him which is evident from the statement of PW2 Jile Ram. Moreover, PW3 Santar Pal has stated in his evidence that he saw the accused Tej Pal and his son Ravindra @ Ravi, Anuj Kumar @ Tarun Kumar and Gulzar of village Bhangela in a fixed state of mind and blood was also found on their clothes and when he questioned about the said fact, he was threatened by the said accused person for dire consequences of his life on account of which, he did not inform about the said fact to any person. The evidence of Santarpal also does not inspire confidence as his conduct in not disclosing the said fact to anyone for three months shows that they have been introduced just to establish the prosecution case against the accused persons.
So far as PW4 Jagat Singh is concerned, he too has given evidence of the last seen that he saw the deceased Pramod with accused Arun Kumar @ Tarun Kumar in a tempo and thereafter both of them met accused/appellant Tej Ram and his son Ravindra, Gulfam and one unknown person and all of them went towards village Bhangela and thereafter the deceased was found dead also appears to be not a reliable piece of evidence as the same has also been found against the accused persons after three months of the incident. The trial Court disbelieved the evidence of the last seen against the appellants and also found that it was suspicious as to why accused persons were not named in the FIR when the said witnesses have seen the deceased with the accused persons and the FIR which was lodged by PW1 Mahipal was against some other accused persons and the explanation which has been given by PW1 Mahipal that he was mislead by Tej Ram is also not acceptable.
The trial Court after considering the entire evidence and the statement of the prosecution witnesses has rightly acquitted the accused persons as it found that the prosecution has not been able to prove its case beyond reasonable doubt and has acquitted them.
Having considered the totality of the circumstance of the present case, we are of the opinion that the view taken by the trial court in acquitting the accused respondents does not suffer from any perversity or illegality. Hence no interference is called for in the impugned judgment of the trial court.
Thus, the application for leave to file government appeal is hereby rejected and accordingly the aforesaid government appeal as well as leave to appeal u/s. 372 Cr.P.C are also dismissed.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date :- 31.10.2018 Madhurima