Hon'ble Om Prakash-VII,J.
This government appeal under Section 378 Cr.P.C. has been preferred against the judgment and order dated 25.8.2014 passed in S.T. No. 884 of 2004, (State of U.P. vs. Azad alias Ramzani alias Hafiz and others), by which the Additional Sessions Judge, court no. 2, Bulandshahr, has acquitted the accused respondents of the charges punishable under section 302/34, 120-B IPC in crime no. 92 of 2003 and also in S.T. No. 885 of 2004 (State vs. Saeed Ahmad @ Babbu) in crime no. 106 of 2003 under Section 25 Arms Act.
In nutshell the prosecution version is that Virasat, Sabir and Ehtesham, sons of Khayal Ahmad, lived as labourer in the garden of Vinay Pratap Singh. They were paid monthly salary of Rs. 1500/- each. Rais Ahmad was the caretaker of the garden whereas Saeed Ahmad @ Babbu was the contractor of the labourers. When monthly payment was not given to them, on 3.6.2003 Ehtesham requested Sayeed Ahmad at about 5 p.m. for it but Saeed refused to give the salary and threatened to kill him. On 4.6.2003 at between 3-4 a.m. Saeed Ahmad is said to have fired from a country made pistol which injured Ehtesham in the stomach. He was taken to Government Hospital Khurja but the doctors in view of his critical condition referred him to Aligarh Medical Hospital, where he expired at about 8.a.m. First Information Report of the incident was lodged after 9 days of the incident. Investigation was conducted and after its completion, chargesheet under Section 302/34, 201, 120-B IPC against the accused Azad @ Ramzani @ Hafiz, Majid @ Kaluwa and Saeed Ahmad @ Babbu was submitted. Chargesheet under Section 25/27 Arms Act was also submitted against the accused Saeed Ahmad @ Babbu.
On submission of the chargesheet, the matter was committed to court of session and charges were framed against the accused persons in both the aforesaid session trial. The prosecution examined PW-1 Khayal Ahmad, PW-2 Virasat, PW-3 Dr. Naseem, PW-4 S.I. Jaipal Singh, PW-5 Dr. R.P. Sharma, PW-6 Inspector Sagheer Ahmad, PW-7 Inspector Arun Kumar Dubey, PW-8 Constable Arvind Singh, PW-9 Constable Sanjeev Kumar, PW-10 S.I. Arun Kumar and PW-11 Sabit in support of the case. The prosecution witness also proved the Police papers. After closing of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. The accused also examined DW-1 S.I. Ramesh Chandra as defence witness in support of their case.
Having heard the learned counsel for the parties, the trial court vide its aforesaid judgment and order acquitted the accused respondents, hence the present appeal.
It is submitted by the learned AGA appearing for the appellant -State that the trial court has not properly appreciated the evidence and has decided the case only on the basis of conjunctures and surmises; that impugned judgment and order is illegal and erroneous; that prosecution had fully proved its case beyond reasonable doubt but the trial court failed to weigh and assess the prosecution case in its proper perspective, though the prosecution case was supported by the eye witnesses account and medical evidence as well as other corroborative evidence, yet the accused respondents have been acquitted. It is lastly submitted that the trial court has overlooked the statement of witnesses and on the basis of conjunctures and surmises it has set-up a different story than the prosecution case.
We have considered the submissions made by the learned AGA appearing for the appellant State and also perused the entire record.
From a perusal of the impugned judgment and order, it is evident that the offence is said to have been committed on 4.6.2003 in the night at about 3-4 a.m.. The First Information Report was lodged after 9 days of the incident. Admittedly, the informant is not an eye witness and was not present at the spot. The story in the FIR is said to have been supported by PW-2 and PW-11. The explanation regarding delay in lodging the FIR given is that accused respondents had been threatening the witnesses not to reveal anything to anyone and not to lodge the FIR. The trial court while appreciating the evidence of eye witnesses has observed that statement of PW-1 Khayal Ahmad is hearsay, therefore, reliance has not been placed on his statement. Regarding statement of PW-2 Virasat and PW-11 Sabit, is concerned, it has been found by the trial court that they too as a matter of fact were not present on the spot for they had admitted in their cross-examination that they reached on the spot after hearing the firing. The trial court also disbelieved the recovery on the basis that the evidence adduced by the prosecution to prove the recovery is not believable.
If the observations recorded by the trial court are compared with the facts and evidence of the case and also with the submissions of the learned AGA, it is evident that recovery is said to have been made from the house of the accused Sayeed Ahmad @ Babbu. Police witnesses examined by the prosecution have admitted in their respective cross-examination that at the time of making such recovery the Police had not tried to obtain any public witness. The views taken by the trial court that recovery has been made in the night which appears to be improbable on the ground also that the tools used to dig the earth was not disclosed. It is an admitted fact that the room from where the said tamancha was recovered was cemented.
As far as the presence of PW-2 and PW-3 on the spot at the time of incident is concerned, on going through the entire evidence and the observations made by the trial court, we are also of the view that the trial court has rightly appreciated the evidence available on record. If both of them were present on the spot at the time of the incident and they were real brothers of the deceased then non disclosure of any fact just after incident to any one creates serious doubt. Since the presence of these two witnesses on the spot appears to be doubtful therefore the trial court has rightly not placed reliance on the evidence of these witnesses.
Thus, on perusal of the entire evidence, the view taken by the trial court appears to be in accordance with the evidence available on record. No other view is possible than acquittal.
Hence, it cannot be said that trial court has not properly appreciated the evidence or there is any perversity in the findings so recorded by the trial court. The impugned judgment is well discussed and based on cogent and convincing reasons.
The appeal has no substance and is accordingly dismissed at the admission stage.
Order Date :- 2.12.2014 safi