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2008 DIGILAW 1228 (ALL)

STATE OF U P v. SOBRAN

2008-07-03

AJAI KUMAR SINGH, BARKAT ALI ZAIDI

body2008
B. A. ZAIDI AND AJAI KUMAR SINGH, JJ. Sri M. C. Joshi, Additional Government Advocate present for the State. 2. Heard him on application under section 378 (3) Cr. P. C. by which the State seeks leave to appeal against a judgment of acquittal dated 9. 6. 2003 passed in Ses sions Trial No. 474/1997 by which Addi tional Sessions Judge, Court No. 14, Meerut acquitted accused Sobran, Harpal and Nar endra on the charge under section 302 I. PC. and accused Sobran also on the charge un der section 404 I. P. C. 3. According to the First Information Report lodged by the father of the deceased P. W. 3 Harkhayal Singh on 17-11-1996 at about 1. 20 Oclock at Police Station Baraut District Baghpat, his son deceased Vikram Singh alias Kallu had gone on the night of 16-11-1996 to irrigate the land of co-villager Sukhpal at his tube-well in village Dhi-karna Police Station Baraut. Since the de ceased did not return in the morning, he went to the tube-well of Sukhram the next morning at 9 Oclock with his meals where he found his son Vikram sitting Shesham tree with a sheet of cloth tying around his neck against of a trunk of Shesham and he was dead. The investiga tion of the case was assigned to RW. 8 S. I. Chandrapal Singh, who recorded the statements of the father of the deceased P. W. 3 Harkhayal the wife of the deceased PW. 2 Saroj, P. W. 3 Vijendra a brother of Saroj, PW. 4 Sukhrampal and other formal witnesses and that of the doctor and on basis of the evidence collected submitted a charge-sheet against accused Sobran under sections 302 and 404 I. P. C. in the Court. 4. The trial Judge after recording the statements of these witnesses of fact and other witnesses acquitted the accused and that is what brings the State here under section 378 (3) Cr. PC. 5. After hearing the learned Counsel for the State and a perusal of the record, it appears that the appeal should be admit ted, only in respect of Sobran, while it should be dismissed in regard to accused Harpal and Narendra. 6. We will confine our comments only to inculcator evidence relating to these two accused Harpal and Narendra and other overall arguments will not be considered at this stage of admission. 7. 6. We will confine our comments only to inculcator evidence relating to these two accused Harpal and Narendra and other overall arguments will not be considered at this stage of admission. 7. The first thing is that there is no motive against these two accused. Two motives have been assigned in this case. One motive has been given by the father of the deceased PW. 1 Harkhayal Singh that the deceased wanted to appropriate the money of his sister and that is why he was killed by accused Sobran. It has not been clarified by the witnesses as to what money belonging to his sister and why the accused wanted to appropriate. Even the Trial Court did not seek the elaboration on this point and remained a silent spectator. The result is that this motive remains confused and confounded and remains useless and purposeless. 8. The other motive has been given by the wife of the deceased PW. 2 Saroj who Has stated that the accused had been tearing her and had been making indecent overtures to her and she complained about this to her father-in-law and her husband and accused Sobran was, thereafter, reprimanded for the same and this is, what en raged the accused and, that is what, made him to kill the deceased. 9. It is, therefore, clear that there is a clear motive, attributed by the widow of the deceased and she unhesitatingly states, that accused is murderer of her husband. 10. The motive and allegations at tributed by the widow cannot be dismissed as being without value and the matter will need examination in detail, along with the circumstances in the case, at the time of arguments. 11. There is, however, no such al legation by the widow against two accused. If these two accused had actually been in volved in the murder of the deceased, her husband, the widow would have also taken their names, but she has exempted them in her statement. 12. The only other evidence in the case available against these two accused Harpal and Narendra is that they were seen coming from the direction where the deceased was found dead by the brother of deceased RW. 4 Sukhrampal. 13. The only circumstance that these two accused were seen coming from the side where the deceased was killed, cannot be considered sufficient to implicate them. 14. 4 Sukhrampal. 13. The only circumstance that these two accused were seen coming from the side where the deceased was killed, cannot be considered sufficient to implicate them. 14. The other evidence in the case is the extra-judicial statement of accused So bran given to RW. 3 Vijendra, who has stated that accused Sobran told him that he had killed deceased along with two accused Harpal and Narendra. 15. The evidence of the co-accused is admittedly considered as a weak evidence and cannot by itself sustain conviction. The law is well-settled on this point. 16. Counsel for the State propounded the argument that if the extra-judicial con fession of Sobran is to be believed, it should be read against all the accused. It is not permissible in law to believe the confession in part and to reject the another port. 17. There is no such law which pro hibits the Court from admitting one part of the evidence of a witness and rejecting the other part. The law is well-settled on he point and it is very usual and common to accept part of the evidence of a witness and to reject the other part. The extra-judicial confession is not indivisible whole like any other evidence. It can be sliced and be lieved in part. 18. The argument of the Counsel for the State is, therefore, unsustainable in law, as also in facts. 19. The consequence is that evidence against the other two accused Harpal and Narendra, except Sobran is without weight and value and it will be a futile exercise, to admit the appeal so far as accused Harpal and Narendra are concerned. 20. Leave to appeal as far as accused Harpal and Narendra is, therefore, refused in limine, granted only with regard to ac cused Sobran. L. O. By the Court.- Heard Sri M. C. Joshi, Additional Government Advocate for the State at admission. 2. For the reasons mentioned in the order passed hereinbefore, the appeal is admitted against accused Sobran. 3. Non-bailable warrant for ensuring the presence of accused-respondent Sobran in appeal be issued returnable within four weeks. If the accused respondent is pro duced before Chief Judicial Magistrate, Baghpat, he will be released on bail on his executing a personal bond of Rs. For the reasons mentioned in the order passed hereinbefore, the appeal is admitted against accused Sobran. 3. Non-bailable warrant for ensuring the presence of accused-respondent Sobran in appeal be issued returnable within four weeks. If the accused respondent is pro duced before Chief Judicial Magistrate, Baghpat, he will be released on bail on his executing a personal bond of Rs. 20, 000 and furnishing two sureties in the like amount to the satisfaction of the Chief Judicial Magistrate and an undertaking that he shall appear before this Court on next date fixed and on other dates, whenever re quired. 4. Chief Judicial Magistrate Baghpat shall send compliance report along with photocopy of the personal bond and surety bonds furnished by on behalf of the ac cused-respondent to this Court by the next date. 5. Copy of this order be sent to Chief Judicial Magistrate Baghpat through Fax within 24 hours for ensuring compliance. 6. Put up on 13-10-2008 for hearing, when Sobran will remain present before the Court. 7. Office will proceed to prepare a typed paper book. Ordered Accordingly. .