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2004 DIGILAW 191 (ALL)

STATE OF U P v. NIRMAL KUMAR ALIAS GUDDU

2004-01-30

M.C.JAIN, ONKARESHWAR BHATT

body2004
ONKARESHWAR BHATT, J. This appeal has been filed against the judgment and order dated 29-5-1998 passed by the then 1st Additional Sessions Judge, Bareilly in Sessions Trial No. 244 of 1993, whereby the accused respondent has been acquitted of the charge under Section 302, IPC. 2. Sri M. C. Joshi, learned AGA and Sri R. L. Verma, learned Counsel for the accused respondent have been heard and the record of the case has been carefully perused. 3. According to the prosecution case informant Net Ram PW 1 and his deceased son Mahesh Kumar alias Chhotey lived in village Darab Nagar, Police Station Aonla, District Barielly. In front of Baithak of the informant there is a Baithak of accused on the eastern side and a road intervenes in between the two Baithaks. On 24-10-1992 at about 6 p. m. the goat of the informant strayed away from the house and ate some green fodder which was kept in the Baithak of Teeka Ram the father of accused. Some altercation took place in that regard. On 25-10- 1992 informant Net Ram PW 1 alongwith his cousins Lala Ram PW 2, Prem Pal PW 4 and one Dundi was sitting in the Baithak of the informant, after taking food. The deceased had also taken food alongwith the informant. At about 9 p. m. the deceased was proceeding towards the old house where grand-mother of the deceased lived. When the deceased came infront of the Baithak of the informant at about 9 p. m. the accused, having a gun in his hand, fired at the deceased causing injury on the head of the deceased. The informant and others rushed towards the accused, who ran inside his. The deceased died on the spot. 4. A written report of the occurrence was got prepared by informant Net Ram through scribe Chhotey Lal. The Investigating Officer I. S. Zaidi PW 5 was present in the police station when FIR was lodged on 25- 10-1992 at 11. 30 p. m. He took up the investigation. He collected the blood stained and plain earth from the spot and also sent the dead body of the deceased for post-mortem examination. Dr. H. C. Yadav PW 3 performed the autospy of the dead body of the deceased on 26-10-1992 at 3. 30 p. m. He took up the investigation. He collected the blood stained and plain earth from the spot and also sent the dead body of the deceased for post-mortem examination. Dr. H. C. Yadav PW 3 performed the autospy of the dead body of the deceased on 26-10-1992 at 3. 30 p. m. The doctor found fire arm injury (would of entry) 1 cm x 1 cm x brain cavity deep on centre of occipital bone on back of head. The doctor found that bullet was palpable which was removed from left side forehead just above left eyebrow. The doctor also found that there was bleeding in the left eyelids. Fracture of occipital and frontal bone on left side was also found. Membranes were lacerated and brain was also lacerated in which blood clot was present. The doctor also found 150 gms. semi digested unidentified food in the stomach. In the opinion of the doctor death occurred due to the coma as a result of ante mortem injury caused by fire arm. 5. The accused respondent stated to have been falsely implicated in the case. He stated that Lala Ram, the elder brother of the informant Net Ram and borrowed his Dunlop which was broken by him due to which a marpeet had taken place in between him and Lala Ram and the case has been falsely instituted against him. 6. Besides the formal evidence the prosecution has examined PW 1 Net Ram, PW 2 Lala Ram and PW 4 Prem Pal as eye-witnesses in the case. On appraisal of evidence the trial Court found that motive of the occurrence is not proved. Place, date and time of the occurrence is also not proved and the ocular testimony is in conflict with medical testimony. On these findings the trial Court has recorded acquittal of the accused-appellant. The State feeling aggrieved has come up in appeal. 7. According to the prosecution case, a day prior to the incident the he-goat of the informant Net Ram ate green fodder of Teeka Ram whereupon an altercation took place with Teeka Ram and his son accused respondent and others. Neither in the evidence nor in the FIR it has come with whom the altercation had taken place. It has not come in evidence whether it was with Net Ram or with his deceased son Mahesh Kumar alias Chhotey. Neither in the evidence nor in the FIR it has come with whom the altercation had taken place. It has not come in evidence whether it was with Net Ram or with his deceased son Mahesh Kumar alias Chhotey. PW 2 Lala Ram stated that eating of green fodder by the he- goat took place on the date of incident itself at about 5 p. m. Lala Ram does not support the prosecution case that the said incident took place a day prior to the occurrence. Lala Ram has stated that some garmagarmi had taken place. He was also not stated with whom it had taken place. The case of eating of green fodder by he goat of the informant having taken place on the date of incident or a day prior to the incident is not consistent. It has not specifically come in evidence that the altercation had taken place on the above count between Net Ram and his son accused respondent on one hand and with the deceased on the other hand. Lala Ram PW 2 has stated for the first time in the Court that the altercation took place in between the informant i. e. Net Ram and the father of the accused i. e. Teeka Ram. If that is to be believed, then motive for killing the deceased is not probablised. The trial Court was justified in finding that the motive has not been proved beyond doubt. 8. It has come in evidence of Dr. H. C. Yadav PW 2 that 150 gms. of semi digested food was found in the stomach of the deceased. Net Ram PW 1 has stated that his deceased son took the meal with him and after taking meal Net Ram came to his Baithak. The prosecution case is that towards north of the Baithak of Net Ram his old house is situated. According to the informant, the deceased after taking his meal was proceeding towards his old house where his grand-mother lived. The place of occurrence, according to the prosecution, is towards south of the Baithak of the informant. In the site plan the old house of the informant is shown towards north of his Baithak. If the deceased was proceeding on the northern side for going to the old house of the informant, there was no occasion for him to proceed southward of the baithak of the informant. In the site plan the old house of the informant is shown towards north of his Baithak. If the deceased was proceeding on the northern side for going to the old house of the informant, there was no occasion for him to proceed southward of the baithak of the informant. In the site plan the deceased is shown to be coming from the northern side towards the south where the incident is alleged to have taken place. If the prosecution case is correct then the direction of going of the deceased should have been from south to north and not from north to south. The blood stained and plain earth is alleged to have been taken during investigation from the place of occurrence. The report of chemical examiner and serologist shows that it cannot be definitely said that they have been taken from one and the same place. This feature also belies the ocular testimony adduced in the case. Net Ram PW 1 has stated that after he and his deceased son took food the assault on the deceased took place after about half an hour. The presence of 150 gms. semi digested food in the stomach of the deceased falsifies the prosecution case that the deceased had taken food half an hour before the occurrence. Further, according to Net Ram PW 1, the fire arm injury was caused to the deceased by a 12 bore gun. The medical evidence shows that bullet was recovered from the injury sustained by the deceased. The trial Court was justified in finding that the fatal shot on the deceased did not take place from a 12 bore gun because in that event pellets etc. should have been found beneath the injury. PW 1 Net Ram, has stated that in the Baithak he was sitting on the floor and not on cot. The informants cousin Lala Ram PW 2 stated that they were sitting in the Baithak on different cots. He also stated that Daroga got a written report prepared by Chhotey Lal and got the thumb impression of informant Net Ram affixed on the same. It is in evidence that Lala Ram had no particular reason for sitting in the Baithak of informant Net Ram. Prem Pal, PW 4 is the other cousin of informant. No other independent witness has been examined in the case. It is in evidence that Lala Ram had no particular reason for sitting in the Baithak of informant Net Ram. Prem Pal, PW 4 is the other cousin of informant. No other independent witness has been examined in the case. The doctor stated that there can be a difference of 3 to 4 hours either way at the time of death of the deceased. In view of the inconsistencies in the ocular and medical testimony the trial Court was justified in recording the finding of acquittal against the accused- respondent. 9. We see no ground for reversing the finding of acquittal. The appeal is accordingly dismissed. The accused respondent is on bail. His bail bonds are cancelled and sureties are discharged. Appeal dismissed. .