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Allahabad High Court · body

2011 DIGILAW 2979 (ALL)

State of Uttar Pradesh v. Prem Pal Jatav

2011-12-23

AMAR SARAN, RAMESH SINHA

body2011
Ramesh Sinha, J.:- The present Government Appeal has been filed by the State against the judgement and order dated 26-04-2004 passed by Shri R. P. Sharma, Additional Sessions Judge (Court No.3), Firozabad in S.T. No. 230 of 2001 (State of U.P. Vs. Prem Pal) by which the accused-respondent has been acquitted for offence under Section 302 I.P.C., Police Station Linepar, District Firozabad arising out of the Case No. 132 of 1999. The brief facts giving rise of the case are that on 18-09-1999 at about 8:15 p.m., Gopi Ram father of the complainant after taking his meal left for sleeping at the tube well. On his way near Hodi (Kundi), two persons intercepted his father and told him that "KYAON BE Tu GAON MAIN BAHUT NETA GIRI KARTA HAIN" on which the complainant's father said that it is not correct on which the two persons who were armed with country made pistol started beating his father with the butt of country made pistol and dragged him to a near by field. It is further stated that the father of the complainant recognized that one of the two persons was Prem Pal son of Gajadhar of his village whom he knew from before and his father enquired why they are beating him on which accused-respondent Prem Pal with his companion whom the complainant's father did not know said that the complainant's father had recognized Prem Pal on which both the accused shot with their country made pistol by which his father was injured and fell on the ground. The complainant and his brother Ram Nath along with villagers on hearing the fire shots reached at the place of occurrence and the accused Prem Pal and his associate fled towards the Railway Line. The complainant along with his brother and other villagers took his father for medical examination at the District Hospital, Firozabad and admitted him and thereafter, he went to the police station to lodge an F.I.R. The injured Gopi Ram was medically examined on 19-09-1999 at 1:00 a.m. at District Hospital, Firozabad by P.W.-10 Dr. S.C. Gupta on 20-09-1999. A supplementary report of Gopi Ram was prepared by Dr. S.C. Gupta and the Doctor opined that the injury was of fire arm. S.C. Gupta on 20-09-1999. A supplementary report of Gopi Ram was prepared by Dr. S.C. Gupta and the Doctor opined that the injury was of fire arm. As the condition of injured Gopi Ram deteriorated, he was referred to S.N. Medical College, Agra where he died on 03-10-1999 at about 10:15 a.m. The post mortem of deceased Gopi Ram was conducted on 22-09-1999 at 4:30 p.m. The cause of death was due to injury sustained as was opined by the Dr. P. K. Sharma, P.W.3. After the post mortem of the deceased, the case was converted from Section 307 I.P.C. to Section 302 I.P.C. on 03-10-1999 by the police. Initially, on 21-09-1999 at about 1:15 a.m., a First Information Report was lodged by P.W.-1 Manik Chand, the son of deceased at police station Linepar, District Firozabad which was at the distance of 8 kms. away from place of occurrence for offence under Section 307 I.P.C. The prosecution examined two eye witnesses P.W.1- Manik Chand and P.W.2- Ram Nath who are the sons of the deceased Gopi Ram and other formal witnesses Dr. P.K. Sharma - P.W.3, P.W.10- Dr. S.C. Gupta and P.W.-7 Sub Inspector Jai Karan, the Investigating Officer, etc. The accused was examined under Section 313 Cr.P.C. and he denied the prosecution story. He has stated that the complainant in collusion with the police has falsely implicated him in the present case. The learned A.G.A. has argued that the acquittal of the appellant by the trial court is against the evidence on record and the finding recorded by the trial court acquitting the accused persons is perverse, hence, the same be set-aside. We have perused the lower court record as well as the impugned judgment and order dated 26-04-2004 passed by the trial court acquitting the accused from the charge. The trial court from the evidence found that the First Information Report has been lodged after three days of the incident which raises suspicion regarding the prosecution story. The delay is unexplained by the prosecution. The trial court considered the evidence of the instant in the light of the judgment of the Apex Court reported in Criminal Reporter 1991 Vol. (2) page 81 S.C., Pooran and others Vs. State of U.P., Criminal Reporter 1992 Vol. (2) page 58 of Allahabad High Court, Kanhai and others Vs. The delay is unexplained by the prosecution. The trial court considered the evidence of the instant in the light of the judgment of the Apex Court reported in Criminal Reporter 1991 Vol. (2) page 81 S.C., Pooran and others Vs. State of U.P., Criminal Reporter 1992 Vol. (2) page 58 of Allahabad High Court, Kanhai and others Vs. State of U.P. in which it has been held that if there has been a delay in lodging the First Information Report of the incident then there are chances of manipulation and fabrication in the prosecution case. The trial court found that the testimony P.W.1 -Manik Chand and P.W.2 -Ram Nath, who are the sons of the deceased Gopi Ram, cannot be relied upon, as admittedly they are not the eye witnesses of the alleged incident and they had reached the place of occurrence along with other villagers on hearing the fire shot. Hence, their testimony does not prove to be credible to convict the accused. Moreover, the trial court also discarded the evidence of P.W.7- Jai Karan Singh who is said to have been recorded the statement of the deceased Gopi Ram under Section 161 Cr.P.C. during investigation in which he has stated that it was the accused- respondent Prem Pal who shot at him. The evidence of P.W.7 does not inspire credibility, as the statement of deceased was not made before any independent witness and the same is said to have been made only before the sons of the deceased P.W.1 and P.W.2. The said statement of the deceased to the Investigating Officer under Section 161 Cr.P.C. is not admissible under Section 33 of the Evidence Act. In this respect the trial court also considered the judgement of the Apex Court reported in S.C. 1991 (28) page 87, Baldev Singh Vs. State of Punjab and in other case reported in Criminal Law Journal 2000 page 19 Supreme Court, Sukhar Vs. In this respect the trial court also considered the judgement of the Apex Court reported in S.C. 1991 (28) page 87, Baldev Singh Vs. State of Punjab and in other case reported in Criminal Law Journal 2000 page 19 Supreme Court, Sukhar Vs. State of U.P. The trial court also found that neither in the F.I.R. nor under Section 161 Cr.P.C. any source of light has been mentioned by P.W. 1 and P.W. 2 and it was for the first time in the court it was stated by P.W. 1- Manik Chand and P.W. 2 -Ram Nath that they saw the incident in the light of mercury bulb which was at the tube well but the Investigating Officer who has prepared the site plan of the place of the occurrence which has been marked as Paper Exhibit. Ka-12 has not shown any bulb at the place of occurrence. The Investigating Officer, P.W.7- Jai Karan in his statement recorded by the trial court, has stated that neither there was any light of bulb at the place of occurrence nor any statement was given by P.W. 1 -Manik Chand and P.W. 2 Ram Nath regarding the same in their statements under Section 161 Cr.P.C. The trial court observed that from the evidence it transpired that P.W. 1 and P.W. 2 have made an improvement regarding the source of light in their statements before the trial court which also creates doubt about their testimony. From the evidence of P.W.1 and P.W.2, the trial court found their statements are contradictory to each other regarding the place of occurrence which also cast doubt about their testimony and their presence at the place of occurrence. Moreover, the trial court found that there was no motive whatsoever for the accused to kill the deceased Gopi Ram and commit the said incident as no motive has been suggested by P.W.1 and P.W. 2 who are the sons of the deceased. In the absence of the motive, the trial court observed that it is not safe to convict the accused whose participation appears to be doubtful as is evident from the evidence of the record. The trial court also found that neither the blood stained clothes or the bullet was produced before the court from which any inference could have been drawn regarding the incident and complicity of the accused. The trial court also found that neither the blood stained clothes or the bullet was produced before the court from which any inference could have been drawn regarding the incident and complicity of the accused. The trial court on the basis of entire evidence produced before it has come to the conclusion that the prosecution has failed to prove its case beyond of reasonable doubt against the accused and there is no direct evidence or ocular testimony which may form chain to prove the guilt of the accused. After having gone through the entire record and we find no perversity in the judgement of the trial court by which the accused-respondent who has been acquitted. It is well settled law that where two views are possible then the view which is favourable to the accused should be followed. Hence, we find no reason to interfere with the impugned judgment and order passed by the trial court, hence Leave to Appeal is rejected and Government Appeal is dismissed. Accordingly, Leave to Appeal is rejected and Government Appeal is dismissed.