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2012 DIGILAW 1450 (ALL)

Desh Raj Singh v. State Of U. P.

2012-07-04

DHARNIDHAR JHA, RAMESH SINHA

body2012
JUDGMENT : 1. We have heard the learned counsel appearing on behalf of the informant who has brought into question the judgment of acquittal dated 28.10.2010 passed by the learned Additional Session Judge, Court no. 4, Bulandsahar in Session Trials No. 91 of 2009 & 90 of 2009. By the impugned judgment, the learned trial judge acquitted the two respondents of charges under Sections 302/34, 201 I.P.C. and 25/4 of the Indian Arms Act. 2. The prosecution case was that the deceased, the son of the informant, namely, Dinesh, had gone to take tuition but he did not come back and subsequently his dead body was found lying near a fodder store where his sleepers and other belongings were also found. His throat had been slit to murder him. This information was lodged against unknown accused persons on 27.11.2008. 3. The second information was lodged by the informant, after being dictated to his brother, on 28.11.2008 in which it was specifically alleged that the accused persons, namely, Arvind, Naresh alongwith Lalit Kumar had committed the murder of his son and the two persons, namely, Gajendra (not examined) and Than Singh (P.W.-2) had seen them coming from the place of occurrence. 4. The Doctor found the corresponding injuries on the throat of the deceased and there could not be any doubt that injury on the throat of the deceased and another wound somewhere own the scrotum of the deceased had been caused by a weapon like a knife. Thus, leaving no doubt in the manner of commission of the murder of the deceased that he had been assaulted with some sharp cutting weapons to be killed. 5. During the course of the trial, P.W.-1, the informant, himself came to support the report but as may appear from the very F.I.R., in the court also, he was not projecting himself as an eye witness. He was placing the same facts on account of deriving the knowledge about the movement of two accused persons namely, Naresh and Arvind Kumar from the place of occurrence and just around the time of occurrence on 27.11.2008. 6. Out of the two persons, namely, Than Singh and Gajendra Singh, the later did not turn up for his evidence. He was placing the same facts on account of deriving the knowledge about the movement of two accused persons namely, Naresh and Arvind Kumar from the place of occurrence and just around the time of occurrence on 27.11.2008. 6. Out of the two persons, namely, Than Singh and Gajendra Singh, the later did not turn up for his evidence. But, Than Singh stated that he had seen the accused persons coming from that direction and when he wanted to know the purpose they were simply asked to mind his business and went inside their house. 7. The learned trial Judge has held that the fact that the accused persons who were seen coming from the place of occurrence had committed murder which fact was stated by P.W.2 in his evidence, had not been stated by him during the course of investigation and he had merely stated that they had been merely seen moving around the place of occurrence. 8. We are of the view that merely being seen somewhere around the place of occurrence or coming from that side, may not be fit enough to raise an inference of culpability unless some other incriminating circumstances and facts in relation thereto are placed before this Court. Thus, what we find is that P.Ws. 1 and 2 were of no avail to the prosecution. We have already noted that Gajendar Singh was not produced. 9. The learned counsel appearing for the appellant has drawn our attention towards some part of evidence of P.W.-1 in which he stated about the motive of the commission of offence. One motive was that respondent no. 2 Naresh sold four bigha of land to the informant and he wanted the land back to him and the informant being not ready for that, respondent Naresh was nursing a grudge against him. 10. One motive was that respondent no. 2 Naresh sold four bigha of land to the informant and he wanted the land back to him and the informant being not ready for that, respondent Naresh was nursing a grudge against him. 10. The learned trial Judge has noted that P.W.-1 has stated in his evidence that purchase of land had taken place four years prior to the occurrence and mutation of the name of the informant into the government's record had already been made, as such, it could not be such a strong motive so as to impelling the accused persons to commit the offence.The other motive which was assigned by the informant was that his son was carrying an illicit relationship with the sister of respondent Arvind but the learned trial judge has noted that this fact was neither stated in the first F.I.R. nor in the second and it was for the first time that he was making the statement in court, but had also stated the fact in his statement under Section 161 Cr.P.C. 11. We are of the view that the rejection of the motive by the learned trial judge may not be said to be an atrocious judicial finding calling upon us to interfere with the order of acquittal. The reason for our finding is that even if the motive had been established, it could not have taken place of proof of charges and, secondly, the motive does not appear established to the hilt so as to pointing out that for these two reasons the accused persons could have been impelled to commit the crime. It was rightly held that transaction which was concluded four years prior in respect of a land and had virtually concluded finally and irreversibly could not be a motive for commission of offence as regards the motive of illicit relationship. We find that except the bald statement no supporting evidence either of the lady with whom the deceased was carrying on his relationship or anyone from the village, was brought on record. 12. We further find that there is an evidence of recovery of a knife at the pointing of appellant Arvind. However, we want to note that that recovery was not admissible against other respondent. 12. We further find that there is an evidence of recovery of a knife at the pointing of appellant Arvind. However, we want to note that that recovery was not admissible against other respondent. So far as the recovery is concerned, the trial court has rightly doubted the findings of blood on that recovered knife because it was embedded in earth and it was allegedly brought out after removing earth. 13. The chance of fabrication destroys the evidence of discovery of the fact and that too when it is being challenged by the respondent by stating that he had not led the police to any discovery of a fact. 14. On the reasons, which we have just pointed out, we are of the opinion, that the judgement of acquittal could have been the only probable result of the trial and as such, this appeal lacks merit and we dismiss the appeal.