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State Of U.P v. Bhim Sen - GOVERNMENT APPEAL No. 1527 of 1983 [2007] RD-AH 4097 (9 March 2007)


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Hon'ble Mukteshwar Prasad, J.

Hon'ble S.C. Nigam, J.

(Delivered by Hon'ble Mukteshwar Prasad, J.)

The State of U.P. has come up in appeal under Section         378 Cr.P.C. against the judgment and order dated 24.2.1983 passed by Sri M.S. Premi, the then Additional Sessions Judge, Shahjahanpur whereby he acquitted three brothers, namely Bhimsen, Bahadur and Babu Ram, all sons of Jhamman Lal, of the charge framed under Section 302 read with Section 34 of the Penal Code.

Two brothers, namely Bhimsen and Babu Ram expired during pendency of this appeal. The appeal filed against them abated vide order of the Court dated 10.9.2005.

Briefly stated, the facts of the prosecution case were as under:

P.W.1 Drigpal, son of Ganga Ram Kurmi, a resident of village Kasrak, P.S. Katra, who is brother-in-law (brother of the wife) of the deceased Munna Lal, is the informant. He handed over a written report at P.S. Katra on 9.8.1982 at 4-10 P.M. and on the basis of the report, the local Police registered a case under Section 302 I.P.C. at crime no. 146. It was alleged that the deceased (Munnal Lal) was an accused and facing trial under Section 307 I.P.C. in the court for making a murderous assault on accused Bhimsen in the year 1981. Consequently, the parties were having strained relations. On 9.8.1982 at about 1-00 P.M., Munna Lal along with his labourer Brijpal were returning home along with fodder. The fodder was being carried in a cart driven by two he buffalos. When the cart reached near sugarcane field of Jagdish, all the three brothers, named above, and one unknown person appeared there from sugarcane field and they all attacked upon Munna Lal with their respective weapons. Accused Bhimsen was armed with a kanta and his two brothers Bahadur and Babu Ram were carrying lathis. The unknown assailant was armed with a gun. Both Munna and Brijpal raised alarm for help. On hearing hue and cry, Drigpal and his sister's son Ram Naresh, who were present at the tube well, rushed to the scene of incident and saw the assailants assaulting Munna Lal. The accused having guns, challenged the witnesses and threatened to kill them. Munna Lal was killed on the spot.

 After registration of the case at the Police station, the local Police started investigation and after completing all formalities sent the dead body to mortuary for post-mortem examination.

Dr. S.K. Kulshrestha conducted autopsy on 10.8.82 at           4-00 P.M. and found four lacerated wounds, bone deep on left pinna just below the left ear, below mandible and muscle deep with underlying base of thumb, second and third fingers of left hand. Two abrasions on the left thigh and right knee were also detected. One lacerated wound, muscle deep with underlying base of second, third and fourth fingers of the right hand were also found.

On internal examination, the doctor found food particles and rice about 200 grams in the stomach and semi digested food were present in the small intestine. The base of skull was found fractured. In the opinion of doctor, the death took place about one day prior to examination due to coma caused as a result of ante-mortem injuries.

The I.O. completed investigation and after completing investigation he submitted charge sheet against all the three brothers. The case was committed to the court of session and the accused were charged under Section 302 read with Section 34 of the Penal Code on 8.11.82.

At the trial, the prosecution examined P.W.1 Drigpal, who is informant and brother-in-law of the deceased, P.W.2 Brijpal was accompanying the deceased and both were bringing fodder on the cart at the time of incident, P.W.3 Ram Naresh is son of the deceased and was a student of IVth Class at the time of alleged murder, P.W.4 S.I. Sobran Singh is the I.O. of the case and he proved the documents prepared by him during investigation and interrogated the witnesses, P.W.5 Dr. S.K. Kulshrestha was posted as Eye Specialist at District Hospital on 10.8.82 and conducted post-mortem examination and P.W.6 Constable Om Prakash filed his affidavit to the effect that he brought the dead body of Munna Lal to mortuary.

Accused Bahadur in his statement given under Section        313 Cr.P.C. admitted that all the three accused were brothers and the deceased was facing trial under Section 307 I.P.C. for making an attempt to commit murder of Bhimsen. He, however, totally denied the accusation levelled against him and attributed his false implication in the case due to enmity. No evidence was led in defence.

After having heard Additional Government Advocate and learned counsel for the accused-respondents and considering the entire evidence on record learned Judge found that the prosecution failed to prove its case against the accused beyond all reasonable doubt and giving benefit of doubt he acquitted all the three accused. Hence this appeal.

We have heard Sri Deepak Verma, Additional Government Advocate for the State and Sri P.N. Gangwar, learned counsel for accused-respondent-Bahadur at length.

Learned A.G.A. has assailed the judgment under appeal mainly on the ground that FIR was lodged promptly at 4-10 P.M. at the Police station katra, situate at a distance of four miles from the place of incident and the accused had adequate motive for committing the murder. There was no inconsistency between medical evidence and ocular testimony on record. The learned Judge further committed error in holding that eyewitnesses were not natural and their presence at the scene of incident was doubtful. P.W.3 Ram Naresh was no doubt a minor witness but he saw the incident and as such, was a competent witness. The trial court was not justified in rejecting his testimony. The testimony of P.W.1 Drigpal and P.W.3 Ram Naresh was trustworthy and the court below should have accepted their testimony. The impugned judgment is not sustainable and is liable to be set aside and the accused Bahadur is liable to be convicted.

On the other hand, learned counsel appearing for the accused-respondents has supported the judgment and contended that the trial Judge was wholly justified in acquitting the accused. He rightly found the presence of eyewitnesses highly doubtful at the scene of incident. He further committed no error in rejecting the testimony of a child witness on the ground that he was tutored.

We have considered the entire submissions made on behalf of the parties. We have also gone through the oral and documentary evidence on record carefully. After having gone through the entire material on record and considering the arguments advanced before us, we are clearly of the opinion that the judgment under appeal suffers from no illegality or perversity. The impugned judgment is sustainable in the eye of law.

Admittedly, the prosecution examined three witnesses of fact, including informant Drigpal, his sister's son Ram Naresh (son of the deceased) also and one Brijpal, who was accompanying the deceased on the cart on the impugned date. P.W.2 Brijpal turned hostile and he asserted that he had not identified the assailants of Munna Lal. So far as the testimony of Drigpal and Ram Naresh is concerned, Drigpal claimed to have arrived at the house of his brother-in-law (Munna) two days prior to the incident and on the impugned date he reached the tube well of the deceased along with Ram Naresh in the morning. P.W. 3 Ram Naresh supported his maternal uncle on this point and gave out that Drigpal had arrived at his house two days prior to the incident. The I.O. of the case gave contradictory statement on this point and testified that Drigpal had arrived there in the morning and he reached the tube well at          about 10-00 A.M. Admittedly, Drigpal was a resident of village Kasrak situate at a distance of seven and half miles from the house of the deceased. In this view of the matter, the presence of Drigpal at the scene of incident appears to be highly doubtful. He further gave a deathblow to the prosecution by asserting that the accused assaulted Munna Lal with Kanta and lathies. P.W.3 Ram Naresh corroborated the testimony of his maternal uncle on this point. The informant stated in clear words that 2-3-4 blows were given to the deceased by Kanta. However, Dr. Kulshrestha found no ante-mortem injury caused by Kanta and this inconsistency between medical evidence and ocular testimony was not explained by the prosecution.

It is noteworthy that as per version made in the FIR, there were four assailants, out of which, three were known and one unknown. One unknown assailant was carrying a gun and he stopped Drigpal and Ram Naresh from proceeding towards the deceased at the point of gun and threatened to kill them. A live cartridge was also recovered from the spot. We, however, find that there was no ante-mortem injury on the body of the deceased caused by firearm or Kanta. The incident in question is said to have taken place at about 1-00 P.M. in broad day light in the month of August. So far as testimony of P.W.3 is concerned, he was a boy aged about 10 years and a student of IVth Class in the year 1982. His statement was recorded in the court on 18.2.83. He admitted in his cross-examination that he arrived in the court compound on 17.2.83 and his maternal uncle had engaged a private counsel also. In this view of the matter, the possibility of boy being tutored by maternal uncle or the Advocate cannot be ruled out. He was a boy of tender age and he could be tutored easily. We find no good ground to take a different view on this point.

In view of the aforesaid discussion and the reasons narrated above, we find that the trial Judge committed no error in appraisal of the evidence on record led by the prosecution. In our opinion, he was justified in acquitting all the accused. We, therefore, find that this appeal lacks merit and is liable to be dismissed.

The appeal is, therefore, dismissed. Accused-respondent Bahadur is detained in District Jail, Shahjahanpur. He shall be set at liberty forthwith, if he is not required to be detained in any other case.

Date: 9th March, 2007



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