Allahabad High Court
State Of Up vs Mohit Koshta And 5 Others on 18 September, 2023
Bench: Surya Prakash Kesarwani, Nand Prabha Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:179858-DB
Court No. - 42
Case :- GOVERNMENT APPEAL No. - 408 of 2023
Appellant :- State of U.P.
Respondent :- Mohit Koshta And 5 Others
Counsel for Appellant :- Ashutosh Kumar Sand
Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Ms. Nand Prabha Shukla,J.
1. Heard Sri K.P. Pathak, learned A.G.A. for the appellant.
2. This appeal has been filed praying to set aside the judgment and order dated 28.06.2023, in Session Trial No.26 of 2017 arising out of Case Crime No.548 of 2016, under Sections 302/120B/149/34 I.P.C. P.S. Kotwali, District - Jhansi, passed by the Additional Session Judge, Court No.2, Jhansi, whereby the accused - respondents, namely, Mohit Koshta son of Kishan Lal Koshta, Km. Nisha Koshta, daughter of Kishan Lal Koshta, Rohit Koshta, son of Kishan Lal Koshta, Smt. Neetu Koshta, daughter of Kishan Lal Koshta and Kishan Lal Koshta son of Late Ram Swaroop Koshta who was real brother of the informant P.W.1 Hari Prakash Koshta have been acquitted. The accused - respondent nos. 1 & 3 are real brothers. The accused - respondent nos. 2 & 4 are real sisters and the accused - respondent no.5 is the real brother of the deceased and the informant P.W. 1. The accused - respondent No.6 is an outsider who has alleged to have been hired to kill the deceased - Ram Prakash Koshta.
3. As per prosecution story, the deceased and the accused - respondent nos.1 to 5 are residing in one and the same house in their respective portion received by them after partition. At about 11 P.M. on 18.10.2016, the informant P.W. 1 (Hari Prakash Koshta) found his brother Ram Prakash Koshta (deceased) in an unconscious state and when family members brought him to hospital he was declared dead. Autopsy of the body of the deceased was conducted on 19.10.2016 at the District Woman Hospital Jhansi by P.W. 7 - Dr. Vimlesh Kumar Misra which revealed cause of the death of the deceased to be asphyxia due to strangulation. The charges were framed against the accused persons who denied the charges. Nine witnesses, namely, informant P.W. 1 - Hari Prakash Koshta (real brother of the deceased), P.W. 2 Nitin Kostha (whose identity could not be established), P.W. 3 Jagdish Prashad (witness of Panchyatnama), P.W. 4 Rafeeq Master, P.W. 5 Geeta Devi (sister of the deceased), P.W. 6 Krishna (nephew of the deceased), P.W. 7 Dr. Vimlesh Kumar Misra, who conducted the autopsy, P.W. 8 Head Constable Ran Bahadur Ramswaroop who registered F.I.R. and P.W. 9 Ashish Misra (Investigating Officer) were examined by the prosecution during trial. Thus, P.W.1, P.W. 2 ,P.W.3, P.W.4, P.W.5 and P.W.6 are witnesses of fact and P.W.7, P.W.8 and P.W.9 are formal witnesses.
4. From perusal of the impugned judgment of the trial court it is evident that the prosecution could not establish any motive of the accused persons for committing murder of the deceased. The prosecution could not complete the chain of circumstantial evidence and the informant P.W.1 has not supported the prosecution case in his evidence. The identity of the P.W. 2 was found to be doubtful and was not established by the prosecution.
5. The P.W. 3 has stated himself to be cousin of the deceased and also stated in his evidence that the accused respondent nos. 1 to 5 were having no dispute with the deceased Ram Prasad. The P.W. 5 Gita Devi and P.W. 6 Krishna (nephew of the deceased) have stated that the deceased and the accused Kishan Lal Koshta were residing in the same house and were having normal relation and the accused persons were having common mess. There are no eye witnesses. The D.W. 1 Lalit Likhar has stated in his examination-in-chief that some persons used to come to meet his uncle (deceased) till late night and the deceased used to close the main door before going to sleep. The deceased was residing on the ground floor portion which he had received in family partition. As per evidence of P.W. 1, he has last seen the deceased with three or four persons with whom he was smoking. Three or four residues of cigarettes were also found and recovered by the I.O. from the site. None of the witnesses has stated that any of the accused persons were last seen with the deceased. In his cross examination the P.W. 1 neither could support the prosecution case nor could support the extra judicial confession. In his cross examination the P.W. 1 has also stated that deceased had lodged F.I.R. against the SHO Kotwali and B.P. Verma, SSI and the local police was having enmity with the deceased and several times local police of Police Station Kotwali came to search the deceased Ram Prasad. He further stated in his cross examination that the Investigating Officer/Local Police have built pressure on him to give evidence against his nephew i.e. the accused P.W. 3 Jagdish Prasad who is the cousin of the deceased, who has also made similar statement in his evidence. He also stated that before a day of the incidence, local police came to the deceased Ram Prakash to pressurise him to withdraw the case and threatened if he had not been an Advocate, he would have been killed within 24 hours. Thus, the enmity of the deceased with the local police came into light in the evidence of the prosecution witnesses as well as P.W. 1. Thus, the prosecution has failed to establish beyond reasonable doubt, commission of offence by the accused persons.
6. We also find that considering the evidences in detail, the trial court found that the prosecution has failed to establish any guilt of the accused respondent beyond reasonable doubt.
7. For all the reasons aforestated, we do not find any error of law or fact in the impugned judgment. Appeal is totally frivolous and, therefore, application for leave to appeal deserves to be rejected.
8. For all the reasons aforestated, application for leave to appeal is rejected and the Government Appeal is dismissed.
Order Date :- 18.9.2023/vkg
