HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 46 Application for Leave to Appeal No........... of 2004 In Case :- GOVERNMENT APPEAL No. - 5287 of 2004 Petitioner :- State Of U.P. Respondent :- Ram Sakal Yadav And Another Petitioner Counsel :- Govt.Advocate Hon'ble Amar Saran,J.
Hon'ble S.C. Agarwal,J.
This application for leave to appeal has been filed against the judgment and order dated 22.6.2004 passed by Additional Sessions Judge / F.T.C. No.5, Ghazipur acquitting the accused-respondents Ram Sakal Yadav and Kuber Yadav in Sessions Trial No.129 of 2002 under section 302/34 IPC and Sessions Trial No. 215 of 2002 against Kuber Yadav under section 25 Arms Act, P.S. Karimuddinpur, District Ghazipur.
The incident took place on 5.3.2002 at about 9:00 P.M. in village Gandhpa near the field of Kamla Yadav. F.I.R. was lodged by the complainant Bhola Yadav (P.W.1) at P.S. Karimuddinpur on 6.3.2002 at 8:05 A.M.
The prosecution case, as contained in the F.I.R., is that the complainant, the accused and the deceased are closely related. There was property dispute between them. On 5.3.2002 at about 9:00 P.M., the deceased Kashi Nath accompanied by the complainant Bhola Yadav (P.W.1) and his mother Smt. Gagi (P.W.8) was going towards his field for thrashing of the paddy crop. As soon as they reached near the field of Kamla Yadav, the accused Ram Sakal Yadav, his son Kuber Yadav and Umesh Yadav assaulted Kashi Nath. Kuber Yadav fired at the deceased causing injuries and Umesh Yadav gave axe blow. Kashi Nath died on spot. Due to fear, F.I.R. was lodged in the next morning.
During trial, the case of Umesh Yadav was separated, as he was found to be a juvenile. The other two accused were tried for the offence punishable under section 302/34 IPC. A country made pistol was recovered from the possession of Kuber Yadav and, therefore, he was charged under section 25 Arms Act also.
On autopsy, one gunshot wound of entry was found on the left side chest besides four incised wounds on face of the deceased.
The prosecution examined as many as 14 witnesses to prove its case, out of which P.W.1 Bhola Yadav and P.W.8 Smt. Gagi are the witnesses of fact and the remaining witnesses are formal in nature. P.W.3 Phullar Pratap Singh is the investigating officer, P.W.4 Hare Ram Yadav is a witness of inquest, P.W.5 constable Sriprakash Singh carried the dead body for postmortem examination, P.W.6 Ram Chander and P.W.7 Subhash are the witnesses of arrest and recovery of a country made pistol from Kuber Yadav, P.W.9 Dr. A.K. Mishra had performed autopsy, P.W.10 constable Khakhan Singh had proved the chick report and G.D. entries, P.W. 12 Mohan Ram is the investigating officer of the case under section 25 Arms Act, P.W.13 constable Uma Kant is also a witness of arrest and P.W. 14 Sushil Kumar is a court clerk, who proved the statement of Bhola Yadav recorded under section 164 Cr.P.C.
Learned Additional Sessions Judge disbelieved the prosecution story and acquitted the accused-respondents Ram Sakal Yadav and Kuber Yadav. Hence, this Appeal.
Heard learned A.G.A. appearing on behalf of the State and perused the trial court's record.
Learned A.G.A. submitted that P.W.1 Bhola Yadav and P.W.8 Smt. Gagi are the eyewitnesses of the incident and they have been wrongly disbelieved by the trial court on the ground that F.I.R. was delayed, the motive was not proved and the statements of witnesses were not reliable.
We are not impressed by the submissions advanced by learned A.G.A. Smt. Gagi (P.W.8) is the mother of the deceased. In her examination-in-chief, she stated that she was accompanied by her son and Bhola at the time of incident and saw the accused-respondents assaulting Kashi Nath, but in the cross-examination, which took place on the very same day, she admitted that during the night she as well as Bhola Yadav (P.W.1) did not inform anyone about the incident. Next morning, when police came, Bhola Yadav called her from the house and on the first information, she saw the dead body of her son along with Bhola. The body was found near the field of Kamla Yadav. In this view of the statement, we agree with the finding of the trial court that P.W.8 Smt. Gagi was not present at the time of incident.
As far as the complainant Bhola Yadav (P.W.1) is concerned, he claims that the incident took place at about 9:00 P.M. in his presence. However, in the cross-examination, he stated that Kashi Nath had come to his house at about 7:00 P.M. and remained with him for about 15 - 20 minutes and went back to his house. At about 8:45 P.M., he went to the house of Kashi Nath, who was having his meals at that time and was eating bread with milk. After taking of meals, Kashi Nath went with him at the Machine of Sukku. When he reached a distance of about five beegha from the house of Kashi Nath, Kashi Nath was assaulted. If the statement of this witness is to be believed, it transpires that the incident took place soon after Kashi Nath had taken dinner, but the postmortem report belies this story. As per the statement of P.W.9 Dr. A.K. Mishra, 100 ml. semi-digested food was found in the stomach. There was liquid in the small intestine and faecal matter and gases were found in the large intestine. According to the doctor, the death could have been caused at about 9:00 P.M. on 5.3.2002, but if the deceased had taken his meal at 8:45 P.M., then his death could not have been caused at 9:00 P.M. and must have been caused in the midnight at about 12:00 ? 1:00 A.M. According to P.W.1, deceased took food at 8:45 P.M. And died at about 9:00 P.M., which is impossible, as semi-digested food was found in the stomach and deceased must have died around midnight, therefore, story setup by P.W.1 Bhola Yadav that incident took place about 9:00 P.M. and was witnessed by him and P.W.8 Smt. Gagi cannot be believed and in our opinion P.W.1 and P.W.8 have been rightly disbelieved by the learned trial court.
Considering the overall circumstances and submissions of learned A.G.A. and after going through the evidence and other papers, we are of the view that no good ground exists for upsetting the judgment of acquittal recorded by the trial court.
There is no merit in the Application for leave to appeal. It is accordingly dismissed.
Order Date :- 26.5.2011 ss