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Allahabad High Court · body

2014 DIGILAW 3097 (ALL)

State v. Shanker.

2014-10-09

RAKESH TIWARI, VIJAY LAKSHMI

body2014
JUDGMENT Rakesh Tiwari, J. Heard learned A.G.A. for the State of U.P.-appellant, learned counsel for the accused-respondents and perused the record. 2. This Government Appeal No. 992 of 1983 under Sections 378 Cr.P.C. has been preferred challenging the validity and correctness of the impugned judgment and order of acquittal dated 17.1.1983 passed by First Addl. Munsif Magistrate, Ghazipur in Case No. 140 of 1982 (State Vs. Shankar and others) acquitting the accused-respondents of the charges framed against them under Sections 394 and 411 I.P.C. 3. During the pendency of appeal accused-respondents Shankar and Naresh have died, therefore, the appeal against them was abated vide order dated 21.2.2011. 4. On 23/24.4.1982 an application was moved by complainant Rajeshwar Singh son of Agare Singh r/o Amaura, P.S. Gahmar, District Ghazipur before SO, Gahmar, Ghazipur at about 2.00 A.M. to the effect that when the complainant along with Ram Janm Ram, Brijraj Yadav and Gurmukh Singh were sleeping on cots in front of the residential quarters of the employees of 'Peya Jal Yojna' three-four miscreants committed theft and looted valuables articles from the residential quarters. They were challenged and chased whereupon the miscreants assaulted Brij Raj and Rajeshwar. On hue and cry, Kanhaiya Singh son of Ramdeo Singh, Awadesh Singh son of Dharm Deo Singh, Shivji Singh son of Dharmdeo Singh and other persons assembled there. The miscreants along with certain stolen articles were apprehended at some distance. They were taken to the Police Station. Case crime no. 71 of 1982 under Sections 394 and 411 IPC was registered. After completing the investigation, the I.O. submitted chargesheet against all the the accused persons. 5. Charges under Sections 394 and 411 IPC were framed against accused Shankar, Naresh and Poojan. They denied to the charges and claimed their trial. 6. In order to prove its case the prosecution examined five witnesses namely, Dr. S.C. Gupta (PW-1) Dashrath Tiwari (PW-2), Brij Raj Yadav (PW-3),first informant,Rajeshwar Singh (PW-4), and Awadesh Singh (PW-5). 7. In their statements under Section 313 Cr.P.C. the accused persons denied the charges stating that they have been falsely implicated in this case on account of enmity. They examined three witnesses namely, Kanhaiya Singh (DW-1), Amar Singh (DW-2) and Jaheer Khan (DW-3) in their defence. 8. 7. In their statements under Section 313 Cr.P.C. the accused persons denied the charges stating that they have been falsely implicated in this case on account of enmity. They examined three witnesses namely, Kanhaiya Singh (DW-1), Amar Singh (DW-2) and Jaheer Khan (DW-3) in their defence. 8. After considering the evidence as well as material on record and hearing the counsel for the parties the trial Court acquitted the accused-respondents vide judgment and order dated 17.1.1983 holding that the prosecution has failed to prove its case beyond all reasonable doubts. 9. The appellant-State of U.P. has preferred this Government Appeal assailing the order and judgment of acquittal of accused-respondents impugned on the ground that it is illegal, perverse, erroneous and against the weight of evidence on record because the evidence of injured and other witnesses have not been properly appreciated by the trial Court and as such the judgment is based on surmises and conjectures. 10. Learned AGA submits that the theft, assault and arrest of the accused as well as the recovery of property from their possession have taken place in the manner as alleged by the prosecution therefore, acquittal was wholly unwarranted in law as such the same is liable to be set aside. 11. Per contra, learned counsel for the accused-respondents has supported the impugned judgment of the trial Court and submits that the witnesses have not supported the case of the prosecution as such the trial Court has rightly acquitted the accused persons, hence no interference is required by this Court. 12. It appears from the statement of Brij Raj Yadav (PW-3) that he had not seen the accused persons while committing theft. Rajeshwar Singh (PW-4) admitted in his evidence that when the accused persons were caught by them, on hue and cry raised many persons of village Gorsara came there but he does not know any one of them by name whereas witness Brijraj Yadav stated that the village and Dera of Mushars are situated separately and on their arrest nobody will be in a position to hear the hue and cry. Awadesh Singh (PW-5) stated that when the accused persons were arrested he was not present. 13. It has also come in the evidence before the trial Court that while fleeing, the accused were flashing their torches on the way, which is not possible. Awadesh Singh (PW-5) stated that when the accused persons were arrested he was not present. 13. It has also come in the evidence before the trial Court that while fleeing, the accused were flashing their torches on the way, which is not possible. If an accused after committing theft flees from the place of occurrence with the stolen goods, he would never flash his torch on the way as it may attract his pursuers. 14. After hearing learned counsel for the parties and on perusal of the evidence on record as well as the impugned judgment, we are of the considered opinion that there are material contradictions in the statements of the witnesses. The trial Court has rightly observed that accused Shankar being physically challenged with defect in one of his legs since birth can not flee fast enough with the looted articles from the place of occurrence from being caught by his pursuers. It may also be noted here that the accused persons examined three defence witnesses namely, Kanhaiya Singh (DW-1), Amar Singh (DW-2) and Jaheer Singh (DW-3) who have stated in their statements that neither the accused persons had committed any theft nor they had caused any injuries to any one and that they were arrested by the police from their houses on the next date of incident. 15. For all the aforesaid reasons, we are of the firm view that the finding recorded by the learned trial Court that the prosecution has failed to prove its case against the accused-respondents, does not suffer from any infirmity or illegality in the facts and circumstances of the case. 16. Accused-respondent Poojan is in jail. He shall be released forthwith if not wanted in any other case. 17. For the reasons stated above, the Government Appeal is also dismissed.