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2004 DIGILAW 116 (AP)

State of M. P. v. Keshav Singh

2004-02-03

A.K.GOHIL, UMA NATH SINGH

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JUDGMENT A.K. Gohil, J.— State has filed this appeal under Section 378 of Cr.P.C, after obtaining leave from this Court against acquittal in Sessions Trial No. 311 of 1986. Respondents were tried under Sections 307/34 of IPC and by judgment dated 18.11.1998, they are acquitted. 2. In short, the prosecution story is that on 3-5-1982 at about 12 in the noon, the accused Gajendra Singh called Jagdish Chandra Goel who was sitting on his shop, after some time Pooran again came to call Jagdish that Gajendra Singh is calling him. On this, Jagdish went on scooter to Gajendra Singh. In the way, near Ratnu Ka Bana on saying of Gajendra Singh, respondent accused Keshav Singh and Ramsewak caught Jagdish and accused Keshav Singh penetrated knife in the stomach of Jagdish Goel and caused stab wound. Ramsewak also repeated the blow. Jagdish after receiving stomach injury, entered in one room in a nearby house. The accused persons fled away from the spot and Kishore s/o. Jagdish lodged FIR at Kotwali, Morena. Jagdish was referred for medical examination and his blood stained clothes were seized and referred to Forensic Science Laboratory, Sagar for re-examination. Statements of the witnesses were recorded and dying declaration of injured Jagdish was also recorded on 4.5.1982 and after investigation, charge-sheet was filed. 3. PW 1 Doctor Dileep Premi who had initially examined injured Jagdish, referred the case to the Surgeon. MLC is Ex. P1. PW 3 is Doctor O.P. Shukla who is an Asstt. Surgeon in the Distt. Hospital, Morena, also examined injured Jagdish and operated him. His medical report is Ex. P4. As per his evidence, injured Jagdish Chandra Goel has received one wound in stomach. His Womentum artery was found visible and in operation, it was found that Peritoneum artery was cut which was repaired in the operation. In the opinion of Doctor, peritoneum was injured and this injury was serious in nature and was dangerous to life. 4. Before the Court in evidence, PW 2 Phoola was declared hostile. PW 4 Ashok Kumar, PW 5 Ramjani, PW 7 Lalliram and PW 11 Sudip Kumar Jain were also declared hostile. Only PW 8 Kishore and PW 9 Jagdish Chandra Goel, injured and PW 3 Dr. 4. Before the Court in evidence, PW 2 Phoola was declared hostile. PW 4 Ashok Kumar, PW 5 Ramjani, PW 7 Lalliram and PW 11 Sudip Kumar Jain were also declared hostile. Only PW 8 Kishore and PW 9 Jagdish Chandra Goel, injured and PW 3 Dr. O.P. Shukla supported the prosecution story but Trial Court found that PW 8 Lalliram who was the servant on the shop of complainant and present on the shop at the time of calling as well as on the spot at the time of incident, has not supported the prosecution story and he was declared hostile. Another eye-witness Sudip Kumar Jain who was cited as eye-witness has also turned hostile and has refused that he had seen the incident. Another witness Ashok Kumar who acted as messenger and who had come twice to call Jagdish on the instruction of Gajendra, has also not supported the prosecution story. It was also found that one Phoola who was resident of Bada of Ratnu and in whose house, the injured Jagdish had entered, has also not supported the prosecution story. Simply, he has supported that Jagdish Chandra had entered in his room and closed doors from inside but he has denied that he had seen the accused persons behind Jagdish Chandra or the accused persons had tried to push the doors. 5. Learned Trial Court also considered this aspect of the matter that the incident took place at about 12.30 p.m. on 3.5.1982 and the report of the incident was lodged at 1.30 p.m. FIR is Ex. P9 but there is overwriting in the Month and 12th line of the FIR. The Court has found that few words were also added subsequently in the memo Ex. P1 by which, the injured was referred for medical examination and more so no crime number was mentioned therein. The Trial Court has also considered this aspect of the matter that when Jagdish Chandra, injured was admitted in the Hospital, then why in the said memo Ex. P1, it was mentioned that Jagdish Chandra has stated that he has received injury in his stomach by knife. The Court has found that PW 1 Dr. Dileep Premi admitted that at 12.30 p.m. he had received the memo of examination of injured Jagdish. P1, it was mentioned that Jagdish Chandra has stated that he has received injury in his stomach by knife. The Court has found that PW 1 Dr. Dileep Premi admitted that at 12.30 p.m. he had received the memo of examination of injured Jagdish. When the report of incident was lodged at 1.30 p.m. then how could he receive memo 12.30 p.m. for MLC of Jagdish whereas the Investigating Officer (PW 1) S.N. Sharma has stated that he could reach Hospital at 2 p.m. and Jagdish was not brought to police station and Ex. P1 was prepared at police station. Therefore, the Court has found that there are material infirmities in the prosecution story and, therefore, prosecution story is not reliable. 6. PW 1 Dr. Dileep Premi who is also, distantly related to Jagdish, has stated that one Kailash Chandra Goel had brought the memo but in the memo, crime number and name of any person has not been mentioned and this fact has also been admitted by PW 10 Investi-gating Officer Shri S.N. Sharma. 7. It is also seen that when Kishore was present on the spot, then why Kishore has not tried to save his father. It is also found that all the friends of Kishore, i.e. Sudip, Lalliram and Kailash were cited as eye-witnesses and were present on the spot but they have neither supported the prosecution story nor tried to save Jagdish nor accom-panied him to hospital or police station. It was also found that the injured was having a gun repair shop at Morena and he is also having relations with police officers and they are visiting the shop. PW 9 Jagdish Chandra injured has admitted this fact in the cross-examination that his father had sold some land to Gajendra Singh and later some objections were filed by Jagdish Chandra against Gajendra Singh and, therefore, this fact cannot be denied that they were not in dispute and complainant is having enmity with accused Gajendra Singh. In the cross-examination, injured Jagdish (PW 9) could not furnish any detail about knife and he was not aware that what was the size of knife and what was its kind. Therefore, on the basis of aforesaid infirmities, the Trial Court has found that the prosecution story is not reliable. Independent witnesses have not supported the prosecution story. In the cross-examination, injured Jagdish (PW 9) could not furnish any detail about knife and he was not aware that what was the size of knife and what was its kind. Therefore, on the basis of aforesaid infirmities, the Trial Court has found that the prosecution story is not reliable. Independent witnesses have not supported the prosecution story. PW 8 Kishore and PW 9 Jagdish both have admitted in cross-examination that cases are pending between Gajendra and Jagdish and their relative Shyam Sunder and objections were filed by Jagdish after the land was sold to Gajendra. Therefore, evidence of PW 8 Kishore and PW 9 Jagdish Chandra is not of sterling quality, the same also does not inspire confidence. It is also found that two views are possible from the aforesaid evidence on record. Therefore, if the Court has taken one view and the other view is also possible, in such circumstances, normally the Court of Appeal should not interfere in the findings recorded by the Court below. Admittedly, it is a case, in which, two views are possible from the aforesaid evidence. One view has already been taken by the Trial court. Thus, it is not a fit case in which, any interference is warranted in this appeal against acquittal. 8. Accordingly, this appeal fails and is hereby dismissed. Appeal dismissed.