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ANIL KUMAR GOSWAMI versus STATE OF U.P.

High Court of Judicature at Allahabad

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Anil Kumar Goswami v. State Of U.P. - CRIMINAL APPEAL No. - 3504 of 2003 [2007] RD-AH 15376 (12 September 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

(COURT NO. 46)

CRIMINAL APPEAL NO. 3504 of 2003

Anil Kumar Goswami Vs. State of U.P.

........................

Hon'ble Amar Saran, J.

Hon'ble S.K. Jain, J.

We have heard, Sri Rajeev Goswami, learned counsel for the appellant and learned AGA and perused the judgement and record.

Prayer for bail has been moved on behalf of appellant, Anil Kumar Goswami, in this appeal, which arises from judgement and order dated 9.7.2003 of the Addl. Sessions Judge, Mathura, in ST No. 582 of 2000, convicting and sentencing the appellant to 302 IPC to imprisonment for life and connected ST No. 581 of 2000 convicting and sentencing the appellant to 3 years' RI under sections 25/27 of the Arms Act.

The prosecution case was that on 10.9.2000, at about 5.30 am, when the deceased Navneet, who was accompanied by the informant, Smt. Saroj, was going for worship near the Ramballabh temple in police station Vrindavan, district Mathura, the appellant, Anil Kumar, had fired him with a countrymade pistol. Smt. Saroj Goswami lodged the report of this incident on 10.9.2000 at 6.15 am at PS Vrindavan. On 22.9.2000 at about 12.30 pm a 315-bore pistol was recovered by the police at the instance of the appellant which is said to have been used for the crime. The motive for the crime was that the deceased Navneet Lal Goswami, who was the jeth (elder brother of husband) of the informant, Saroj Goswami, PW 1, used to reside in Ahmedabad with his family and used to visit Vrindavan from time to time. He possessed share in the property under the name of Bari Sarkar in mohalla Athkhamba, Vrindavan. His share and that of Smt. Saroj in the property was 2/3rd. One-third of the share in the temple offerings was that of the nephew, the appellant. The appellant was interested in taking the offerings for the Sevakunj temple and the rent of two shops and there had been verbal altercation with the deceased with Anil on this score.

It was argued by the learned counsel for the appellant that (1) a solitary witness, PW 1 Smt. Saroj, has been produced for supporting the prosecution case, (2) that Smt. Saroj was a widow and she was unlikely to go along with the deceased, who was her elder, Jeth, at the time of the incident, (3) although the prosecution version was that the appellant had fired on the neck of the deceased but there was no injury on the neck of the deceased, (4) the report was ante-timed because the crime number and age was added later on to the inquest report by means of a overwriting, (5) the report was over-prompt because it was said to have been lodged within hardly 45 minutes of the incident, (6) the two other witnesses, Rajesh and Gopal, who were named in the FIR, have not been produced in the court and, (7), there is no independent or injured witness etc. for corroborating the prosecution case.

The learned AGA, on the other hand, contends that the appellant had a motive for committing the crime as he was interested in grabbing the share of the property of the deceased but used to reside in Ahmedabad. It is not impossible for the informant, PW 1, Smt. Saroj, to have gone along with the deceased at the time of the incident i.e. 10.9.2000 at 5.30 am, simply because he was her Jeth, when he was going to offer prayer in the temple. If she was looking after the share of the temple offering, she would not be such a home-staying person and there was no reason for her to have implicated the appellant, who was nephew of her late husband if he had nothing to do with the crime. It is not material if the informant, PW 1, Smt. Saroj, had stated that the appellant had assaulted the the deceased on his neck because on the entry wound was from the left temple and the exit wound was from the right temple and it is not very material whether the reason is described as the neck or the temple. For this minor discrepancy the appellant cannot make out a case for bail simply because the crime number and age of the deceased has been added later on in the inquest report and it would not be inferred that the FIR was not in existence at that time and no explanation in this regard has been sought from the investigation officer or the informant as the incident had taken place in the heart of Vrindavan when people were going about for their worship. Furthermore, lodging of the FIR within 45 minutes at 6.15 am cannot make it too prompt. Rather, it indicates that the incident as mentioned by the informant was correct. Non-production of the other two witnesses, Rajesh ans Gopal, who have been named in the FIR, is not material, as witnesses are extremely reluctant to join dispute between the parties and give evidence in cases concerning the other parties. Non-examination of an independent witness, therefore, and absence of any injured witness provides no ground or grant of bail. Furthermore, the learned AGA has submitted that the trial court has given sound reasons for convicting the appellant.

In view of the aforesaid, without commenting on the merits of the case, we think that the appellant, Anil Kumar Goswami, has not made any case for bail and his prayer for bail is rejected.

At this juncture learned counsel for the appellant has submitted that the appellant is unwell and he should be granted parole and that he has been in jail for about 7 years.

In this regard, we have noticed from the record that the parole application has been moved not on the ground of illness of the appellant but on the ground of illness of his wife.

We direct that when the application for parole is moved, it may be considered by the appropriate Bench.

Dated: 12.9.2007

AS-152/sks.


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