Hon'ble S.C. Agarwal,J.
This Application for leave to appeal has been filed on behalf of the State of U.P. against the judgment and order dated 27.10.2010 passed by Additional Sessions Judge (F.T.C. No.2), J.P. Nagar acquitting the accused-respondents Rajvir alias Raju and Balveer in Sessions Trial No.253 of 2005 under section 302 IPC, P.S. Gajraula, District J.P. Nagar.
The incident took place in the intervening night of 15/16-4-2005 at 1:00 A.M. in the jungle of village Shahbajpur Dore, P.S. Gajraula, District J.P. Nagar. The F.I.R. was lodged on 16.4.2005 at 7:20 A.M. at P.S. Gajraula by complainant Charan Singh (P.W.1) - the brother of the deceased Parmeshwari against unknown persons.
As per the F.I.R., the deceased was sleeping outside his shop at Khayalipur Dhaal on a cot. His brother-in-law Om Prakash (P.W.4) was sleeping inside the shop. In the night, some unknown persons committed murder of Parmeshwari by cutting his neck. When Om Prakash (P.W.4) woke up in the morning, he informed the complainant and the F.I.R. was lodged.
On autopsy performed by Dr. H.C. Dua (P.W.6), the following ante mortem injuries were found on the person of the deceased :
(i) Incised wound over left side cheek extending from left angle of mouth front of left ear, measuring 12 cm. x 2 cm. x bone deep oblique downward anteriorly. Margins clean cut, underlying mandible is fractured.
(ii) Incised wound over anterio lateral aspect of neck, 3½ above the root of neck. Horizontally placed. Measuring 14 cm. x 2 cm. x muscle deep, underlying carotid vessels are cut along with muscle and other tissues and trachea. Margins clean cut.
(iii) Incised wound in front of chest 2 cm. below manubrain stern. Horizontally placed measuring 3 cm. x 3/10 cm. x skin deep. Margins clean cut.
50 grams semi digested food was found in the stomach. The death was caused due to shock and haemorrhage as a result of ante mortem injuries.
During investigation, the names of respondents Rajvir alias Raju and Balveer came to light. Charge sheet was submitted by the police.
Charge under section 302 IPC was framed against the respondents, who denied the charge and claimed to be tried.
In the Sessions Court as many as 8 witnesses were examined by the prosecution to prove its case. Charan Singh (P.W.1) is the complainant. His brother Pooran Singh (P.W.2) and brother-in-law Om Prakash (P.W.4) have been examined as witnesses of fact. S.I. B.L Verma (P.W.3) and S.I. K.P. Singh Bhati (P.W.8) are the investigating officers. Dr. H.C Dua (P.W.6) had performed autopsy on the dead body. Constable Lokendra Sharma (P.W.5) has proved the chick report and copy of the G.D. Entry. A.S.I. Daya Chand Sharma (P.W.7) is the witness of arrest of the accused-respondents on 25.4.2005 at 3:40 P.M. and recovery of a spade at their instance.
Learned Sessions Judge also examined the accused-respondents under sections 313 Cr.P.C. No defence evidence was adduced. Learned Sessions Judge, after considering the evidence on record, did not find the prosecution case credible and extended the benefit of doubt to the accused-respondents and acquitted them. Hence, this Appeal.
Learned A.G.A. submitted that there was sufficient evidence on record to prove the guilt of the accused-respondents. There was motive for the crime, as earlier the deceased had seen accused Rajvir alias Raju with a young girl of the village in a compromising position and had threatened Rajvir alias Raju to expose him in the community and this provided the motive for the crime. It was further submitted that P.W.4 Om Prakash had seen the incident and had also seen the accused-respondents committing the murder of the deceased and on the alarm raised by him, P.W.2 Pooran Singh also reached on the spot and saw the accused-respondents going from the place of incident carrying a spade and the evidence of these two witnesses should not have been disbelieved. The further submission is that the spade used in the commission of the offence was recovered by the police on the instance of the accused and the recovery has been wrongly disbelieved by the trial court.
We have considered the submissions advanced by learned A.G.A. in the light of the evidence available on record and we are unable to place any reliance on the same for the following reasons :
(a) Pooran Singh (P.W.2) is the real brother of the deceased and Om Prakash (P.W.4) is the brother-in-law of the deceased. According to the F.I.R. lodged by Charan Singh (P.W.1), who also happens to be the brother of the deceased, at the time of incident, Om Prakash was sleeping inside the shop and Om Prakash came to know about the murder in the morning when he saw the dead body and thereafter he informed the complainant about the incident. Had Om Prakash woken up at the time of incident and witnessed the incident, he would have immediately informed the complainant in the night itself and must have disclosed the fact that the murder was committed by the accused-respondents. Similarly, Pooran Singh claims that upon hearing the alarm, he rushed to the place of occurrence and found the accused-respondents running away carrying a spade. He also did not disclose this fact to the complainant before lodging of the F.I.R. Had Om Prakash and Pooran Singh seen the accused-respondents committing the murder of Parmeshwari in the night, they would have immediately rushed to the complainant to inform him about the incident and the names of the accused would have found place in the F.I.R., but surprisingly enough, the F.I.R. was lodged in the next morning against unknown persons. This fact itself is sufficient to raise a presumption that till the lodging of the F.I.R., neither the complainant nor any of the family member knew as to whom had committed the murder of the deceased. It is inconceivable that P.W.2 and P.W.4 had witnessed the incident and did not disclose the names of the accused to the complainant. In these circumstances, we agree with the finding of the learned Sessions Judge that the testimony of P.W.2 and P.W.4 does not inspire confidence.
(b) As regards motive, the fact that the deceased had seen Rajvir in the company of daughter of Naurang Singh in compromising position and the deceased had threatened Rajvir to expose him before the community has not been mentioned in the F.I.R. and appears to be an afterthought.
(c) Learned trial court has found that the deceased was not living with his brothers Charan Singh and Pooran Singh and was having enmity with his own in-laws and P.W.2 as well as P.W.4 did not try to make any effort to save the deceased and, therefore, their testimony was not reliable and mere motive was not sufficient to hold accused-respondents guilty.
(d) As far as the recovery of spade at the pointing out of Rajvir is concerned, the recovery has been made from an open field. There is no public witness of the recovery. There is no report of Serologist on record to show that there were any blood stains on the spade or not. In these circumstances, we agree that the finding recorded by learned Sessions Judge that recovery of spade is not proved. Even if it is proved, in the absence of any blood stains on the spade, the recovery cannot be said to be connected with the crime.
On a careful perusal of the evidence on record, we have come to the conclusion that the evidence has been properly analyzed by learned Sessions Judge and the judgment of acquittal recorded by learned Sessions Judge does not require any interference by this Court. The evidence against the accused-respondents is of extremely doubtful character.
Considering the overall circumstances and submissions of learned A.G.A. and after going through the evidence and other papers, we are of the view that no good grounds exist for upsetting the judgment of the trial court acquitting the accused-respondents.
There is no merit in the Application for leave to appeal. It is accordingly dismissed.
Order Date :- 27.5.2011 ss