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Babloo Pasi v. State Of U.P. - CRIMINAL APPEAL No. 3902 of 2007 [2007] RD-AH 14219 (20 August 2007)


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Court No.46

Criminal Appeal No.3902 of 2007

Babloo Pasi                                vs.                      State of U.P.

Hon.Amar Saran,J.

Hon.Shiv Shanker,J.

                 (Delivered by Hon.Shiv Shanker,J.)

Heard learned counsel for the appellant and learned A.G.A. and perused the whole record.

Learned counsel for the appellant has submitted that the F.I.R. has been lodged ante timed as P.W.1 admitted in his evidence that the F.I.R. was lodged on 9.9.2005 at 6.00 A.M. while it has been shown to be lodged on 9.9.2005 at 00.30 (mid night). It is further contended that written report and chik F.I.R. were sent to the concerned court with a delay of 3 days. Therefore, there is no compliance of Section 157 Cr.P.C. in sending the report to the concerned court.

It is further contended that deceased sustained sharp edged weapon injury on his mouth and blood was coming from the said injury according to the F.I.R.. Similarly, opinion of witnesses of the inquest report reveals the same. Therefore, deceased sustained sharp edged weapon according to the F.I.R. and the inquest report  but the post mortem report of the deceased reveals that one abraded contusion and second abrasion contusion and third tongue protuded. Therefore, no any ante mortem injury was found on the deadbody of the deceased caused by sharp edged weapon. Therefore, there is medical conflict in the case.

It is further contended that P.W.6 Dr. Rajendra Kumar Gupta has admitted in his testimony that ante mortem injuries could be received by collision of some blunt object in the pond.

It is further contended that firstly charge was framed against the appellant by mentioning the knife injury. Subsequently, charge was amended by mentioning the cause of death by pressing the neck of the deceased in place of causing the injury with the knife. There is no eye witness of this incident. Motive is also not sufficient against the present appellant.

It is further contended that appellant was allegedly seen at a distance of 60 steps by the witnesses. They had allegedly apprehended the appellant at a distance of 20 steps. In such circumstances, he could not be apprehended  within 20 steps after running 60 steps by the witnesses. It is further contended that there is no local witness of  the incident. Witness of circumstance of showing the C.D. has not been produced.

It is further contended that the prior conduct of the appellant was not disputed as there was no criminal history against him. He has been falsely implicated in this case. Three witnesses  D.Ws.1, 2 and 3 have been produced on behalf of the appellant. They have stated that they did not hear in the village regarding apprehending the appellant near the place of occurrence. He was caught by police from his house. In absence of  such  evidence, the chain is not complete in the circumstantial case.

This is the case of circumstantial evidence. Therefore, mentioning weapon in the F.I.R. as well as in the inquest report has no much importance as the case is not based upon the direct evidence. First informant P.W.1 and witnesses of the inquest report including the police official, who prepared inquest report were not expert regarding given the opinion of the injuries. P.W.6 Doctor has stated that following ante mortem injuries were found on the dead body of the deceased:-

1.Abraded contusion 3 cm.x1.5cm on left and right side of neck. There  is a gap of 2 cm. Infection.

2.Abrasion and contusion 4cmx 3cm around both eyes

3.Tongue protuded.

Therefore, it is only relevant here that the deceased sustained above injuries. This shows that his neck was pressed. Consequently, above three ante mortem injuries were found on the dead body of the deceased and cause of death of the deceased has been shown by  post mortem report as Asphyxia as a result of ante mortem throttling of neck. Therefore, there is no medical conflict in the case.

It has come in the evidence of the witnesses examined before the trial judge that the appellant had reached at the shop of P.W.1 Rama Shanker on 8.9.2005 at about 8.00 A.M. and he had tried to take some rice from his shop forcibly, upon which he objected. Therefore, some altercation took place between P.W.1 and appellant. He had also thrown stones upon him, fortunately, he was saved. Thereafter, he had gone from there extending threatening regarding the murder.

There is another circumstance that  Anku, son of  P.W.1 on the same day had gone for natural calls but he did not come back. 3rd circumstance is that P.W.1 along with others had tried to search Anku in the night. Appellant was seen near the pond, who was identified in the torch light and saw that he was taken the deadbody of Anku. 4th circumstance is that he was challenged, upon which he had thrown the deadbody of the deceased in the said pond but he was apprehended same time after throwing the deadbody.

5th circumstance is that the deadbody of the deceased was taken out  from pond. 6th circumstance is that P.W.3 Lalchand has stated that  Anku was seen with the appellant at 6.30-7.00 P.M. at the crossing of the village where C.D. was going on. 7th circumstance is that appellant, who was apprehended the deadbody of the deceased were taken to the police station where the F.I.R. was lodged at 00.30 P.M. in the same night. Although P.W.1 has challenged in his cross examination for lodging the report at 6.00 A.M. it will be considered on merits of the case but the same time the F.I.R. was lodged has also been mentioned in the inquest report of the deceased. 8th circumstance is that he was killed by pressing the neck of the deceased. Consequently, above three ante mortem injuries were found on the deadbody of the deceased. Therefore,  there is complete chain of the circumstances reveals regarding the offence of murder of the deceased for which it has been proved against the appellant, who is responsible to commit the murder of the deceased.

It has not come anywhere from the side of the appellant why he has been implicated falsely in this case.

After considering the facts and circumstances of the case and evidence available on record, we do not find any force in the argument of learned counsel for the appellant and the prayer for bail is not liable to be allowed.

Consequently, bail application of the appellant is refused.




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