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2014 DIGILAW 486 (ALL)

State of U. P. v. Parsoo Ram

2014-02-12

ARVIND KUMAR MISHRA I, RAKESH TIWARI

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JUDGMENT Arvind Kumar Mishra-I, J.: - This Govt. Appeal has been moved by the State challenging the judgement and order of acquittal as against Parsoo Ram accused, dated 8th December 1981 passed by the learned 2nd Additional Sessions Judge, Gorakhpur in Sessions Trial No. 119 of 1981 ( State Vs. Jai Ram and three others), under sections 302/34 I.P.C. of Police Station Gola, District Gorakhpur. 2. We have heard Shri D.I. Faridi learned A.G.A. on behalf of the State, Shri M.K. Gupta learned counsel on behalf of the accused respondents and gone through the impugned judgement of acquittal. 3. As per prosecution version, there existed old enmity on account of litigation between the complainant Surya Bhan Maurya and the accused persons. According to the prosecution, the motive of the occurrence was attributed to the old enmity. The first information report narrates that the complainant is resident of village Baroh. In the night of 29/30th October 1979, the complainant and his father-Sri Ram Kumar Maurya accompanied with a relative Ram Gati returned to their house at 12.30 A.M. after irrigating their fields. The complainant, his brother Brij Bhan and the above relative Ram Gati were sleeping in the Osara of the Bangla, while the father of the complainant was lying on the cot near Charhi or through cattle outside. At about 1 O'clock in the night the accused Jai Ram armed with a Gandasa and his brother the accused Parasu Ram armed with a Ballam, accused Sri Prakash armed with a lathi, and the latter's father namely accused Ram Bilas armed with Pharsa arrived there. The accused persons are alleged to hve surrounded the Charpai on which the complainant's father was sleeping near Charpai. The accused Ram Bilas dealt a blow with his Pharsa on the head of the complainant's father. The complainant's father uttered "KAA HO BILLAS YEE KAA KAILA". The complainant then raised alarm " DAURO PANCHO BACHAO MAAR DARLE". On hearing of hue and cry, the villagers Tilakdhari, Hardwar, Ram Asre etc. reached the place of occurrence. The complainant's father tried to run away, but he fell down at a distance of 2-3 feet from the 'Charpai'. In the meantime Parsoo Ram accused inflicted a Ballam blow on the chest of Ram Kumar. The accused Jai Ram started to cut the throat of Ram Kumar by Gandasa. reached the place of occurrence. The complainant's father tried to run away, but he fell down at a distance of 2-3 feet from the 'Charpai'. In the meantime Parsoo Ram accused inflicted a Ballam blow on the chest of Ram Kumar. The accused Jai Ram started to cut the throat of Ram Kumar by Gandasa. The accused Sri Prakash fired a shot with his Katta at the time of the retreat of the accused persons. The complainant and the witness had seen this occurrence from a distance of 15-20 steps in the light of the moon and that of torches. The accused persons after committing the murder ran away towards the southern direction. 4. The complainant Surya Bhan Maurya after getting scribed the written report dated 30.10.1979 (Ex. Ka-1), went to the police station Gola for lodging F.I.R. of the intervening night of 29.10.1979 and 30.10.1979. Constable Moharrir prepared the chik report (Ex. Ka 24) on the same day under section 302 I.P.C. and also entered the case in G.D. No. 3 dated 30.10.1979 lodging the F.I.R. at 2: 55 a.m. on the same night. 5. The S.O. Gola Sri Mahima Rai was not present when the F.I.R. was lodged being on 'Gasht' duty, therefore, Constable Ramker was dispatched to handover the necessary papers to him which were received by the S.O. on the same date i.e. 30.10.1979 at 4.30 A.M. S.O. immediately proceeded for the place of occurrence and reached there at about 5.00 A.M. On reaching there place of occurrence, he interrogated the informant Surya Bhan. The Investigating Officer also interrogated the witnesses namely Brij Bhan, Tilakdhari, Ram Asre and Hardwar on the same date 30.10.1979. The accused Ram Bilas and Parasu Ram were arrested on the same day i.e. 30.10.1979. The other two accused Sri Prakash and Jai Ram could not be apprehended . However they surrendered in the court of the Magistrate and thereafter Investigating Officer interrogated them on 19.12.1979. The charge sheet against all the four accused was submitted on 19.12.1979. 6. The investigating Officer had taken into possession the torches of the eye-witness and thereafter recovery memos Exs. Ka 2 to Ka 20 were prepared . He also took possession of the blood stained and plain earth and prepared recovery memo Ex.Ka 21. The charge sheet against all the four accused was submitted on 19.12.1979. 6. The investigating Officer had taken into possession the torches of the eye-witness and thereafter recovery memos Exs. Ka 2 to Ka 20 were prepared . He also took possession of the blood stained and plain earth and prepared recovery memo Ex.Ka 21. One Chadar and one Gamchha found lying over the dead body were also taken into possession which were stained with blood, recovery memo thereof is Ex. Ka 22 and prepared site plan dated 30.10.1979 (Ex. Ka-2). The inquest proceedings were conducted by him from 7.30 A.M. to 9: 00 a.m. and its report (Ex. Ka 3) was prepared on the same day. After preparing the challan Lash (Ex. Ka-4), the dead body duly sealed was handed over to carrier constables Banwari Singh and Suresh Chandra. The autopsy was conducted on 31.10.1979 by Dr. A.K. Srivastava who prepared the post mortem report (Ex. Ka 23). From its perusal it appears that the age of the deceased was about 60 years and duration of death was about 1-1/2 days. As many as 7 injuries were found upon the person of the deceased and in the opinion of the doctor, the death was caused by shock and haemorrhage as a result of ante mortem injuries. The Medical Officer had also extracted 3 pallets which were handed over in a sealed bundle to the escorting constables. 7. On the basis of the material and the evidence collected by the prosecution, charge under 302 read with section 34 I.P.C. was framed against the aforesaid four accused persons in the Court of Sessions on 16.4.1981. 8. The prosecution examined the informant Surya Bhan P.W.1, Ram Asre an eye wtiness P.W. 2, Sri Mahima Rai Investigatintg Officer, P.W. 3 Constable Suresh Chandra P.W. 6, Dr. A.K. Srivastava P.W. 7, Head Constable Riaz Hasan P.W. 8 . The prosecution also examined constable Om Prakash Singh P.W. 4 Constable Ali Ahmad P.W. 5, Constable Mohd. Ismail P.W. 9 and Badhai Prasad clerk of the C.M.O. Office, P.W.10.. 9. A.K. Srivastava P.W. 7, Head Constable Riaz Hasan P.W. 8 . The prosecution also examined constable Om Prakash Singh P.W. 4 Constable Ali Ahmad P.W. 5, Constable Mohd. Ismail P.W. 9 and Badhai Prasad clerk of the C.M.O. Office, P.W.10.. 9. Upon hearing the counsel for the parties on the question of involvement of Parsoo Ram accused and his role so assigned, it is noticed that it was pleaded before the trial court that the implication of the accused Parsau Ram is false due to enmity as at the relevant time, his right hand had fractured and was surgically operated upon. Accused Parsau Ram was alleged to be armed with Ballam and was assigned the role of giving a blow with it. This allegation suffers from serious discrepancy and inconsistency as it would be apparent from the statement of the Medical officer and the post mortem report that there is no injury which could be caused by Ballam. Injury no.3 is said to have been caused by Ballam but it cannot be accepted because in that case, there should be sufficient depth while injury no.3 is only muscle deep. Even doctor (P.W.7) has given a very bleak possibility that this injury might be caused by a Ballam, though in cross-examination he has come to a definite opinion that keeping in view the depth of injury no.3 as reported would come by dealt blow with Pharsa "Gandasa". Thus, the use of Ballam is negatived by the evidence on record. Moreover, this is towards the right shoulder and not on the chest as was the case in the F.I.R. Therefore, trial court recorded the finding that accused Parasu Ram was appearing to be about 20 years of age and he was a boy like and his age would have been about 17-18 years as per the deposition of witness P.W. 2 of the prosecution, he could not state as to which hand of the accused Parsoo Ram was fractured when plaster was removed just before the occurrence. As stated above, Ballam injury was not found on the body of the deceased and Parsoo Ram could not have inflicted that alleged injury according to role assigned to him in the prosecution story. 10. As stated above, Ballam injury was not found on the body of the deceased and Parsoo Ram could not have inflicted that alleged injury according to role assigned to him in the prosecution story. 10. After examining the entire evidence on record, the court below found that prosecution was able to establish the offence under section 302 I.P.C. read with section 34 I.P.C. only against the accused Ram Bilas, Jai Ram and Shri Prakash only but not against the Parsoo Ram who could not have been present at the time of occurrence, hence he was acquitted for the offences under Section 302 read with section 34. I.P.C. 11. Having considered the submission made by the learned A.G.A. and on perusal of the impugned judgement, we are of the view that the learned trial court having applied the principles of appreciation of circumstantial evidence was of the view that from the circumstances of this case, conclusion of guilt cannot be drawn against the Parsoo Ram accused as its finding recorded in the acquittal order is neither perverse nor contrary to the evidence and material on record. 12. We are of the firm view that the view taken by the court below is a possible one on the basis of evidence, facts and circumstances of the case. There is no compelling and substantial circumstance to interfere with the findings recorded in the impugned judgement in this Government Appeal against acquittal. 13. For all the reasons stated above, we find no reason to differ from the reasons recorded by the learned trial Judge in so far as it relates to the case of Parsoo Ram who has been justifiably acquitted by the trial court. As a result of aforesaid discussion, the judgement under appeal is upheld. 14. The Govt. Appeal is dismissed accordingly.