State of U.P. vs Umakant and Others

Heard learned AGA and perused the trial Court judgment and record.

This application for leave to appeal has been preferred against the judgment and order dated 29.10.2010 passed by the Additional Sessions Judge, Court No. 6, Shahjahanpr in S.T. No. 1077 of 2000 (State Vs. Uma Kant and others) arising out of Case Crime No. 39A of 2000 under Sections 307, 504, 506 I.P.C., Police Station-Puvaya, District-Shahjahanpur, by which the trial Court has acquitted the accused respondents.

The prosecution case in brief is that the informant-Vivekanand, son of Dadhinath Bajpai, resident of Village Satwan Bujurg, Police Station-Puvaya, District-Shahjahanpur has stated that there was an enmity going on between him and one Uma Kant son of Kamta Prasad. On 9.2.2000 at about 8.30 A.M. he was returning from his fair price shop to his house and as soon as the informant reached near the house of Girja Shanker, all the accused persons, namely, Uma Kant, Vijay Kant, Ajay Kant sons of Kamta Prasad and Ashok Kumar Pandey son of Ram Sewak armed with licensee weapons started abusing him and in order to kill him, started indiscriminate firing on him, due to which one pellet hit the neck of the informant. On the alarm raised by the informant, one Vinod Kumar son of Gopinath, who was resident of the village and his father Dadhinath came on the spot, who exhorted the accused persons and saved his life and the accused persons threatened him of his life and fled away towards their house.

The FIR of the incident was lodged by Vivekanand son of Dadhinath, who was also an injured, as Case Crime No. 39A of 2000, under Sections 307, 504, 506 I.P.C at police station-Puvaya, District Shahjahanpur at 11.30 A.M. The medical examination of the injured was conducted by Dr. M.L. Pushkar, PW4, on the same day.

The informant/injured of the present case, namely, Vivekanand was not examined by the trial Court as he had died because he was murdered before recording of the evidence by the trial Court. A cross report of the incident was also lodged by Rama Kant from the side of the accused persons on 9.2.2000 at 8.45 A.M. at Police Station-Puvayan, District Shahjahanpur as Crime No. 39 of 2000, u/s 307 I.P.C. against the accused respondents in which three persons from the side of the accused respondents, namely, Nisha Kant alias Manish, Kallu and one Ravindra received injuries in the incident dated 9.2.2000 at 8.30 A.M. and they were also tried in S.T. No. 230 of 2001 (State Vs. Vinod Kumar and others). The trial Court acquitted the accused respondents on the ground that the alleged eye-witnesses namely PW1-Vinod Kumar, PW2-Pramod Nath alias Kallu and PW3-Dadhinath Bajpai reached the place of occurrence on hearing the alarm and noise and their presence at the place of occurrence seems to be doubtful. The trial Court found that PW2 has stated in his examination-in-chief that the accused respondents, namely, Ajay Kant, Uma Kant, Vijay Kant were armed with guns and Ashok Kumar was armed with countrymade pistol, whereas in the FIR the informant Vivekanand has stated that all he accused persons were with licensee weapons and PW1-Vinod Kumar Kumar has stated that all the accused persons were armed with licensee weapons.

Moreover, PW2 in his cross-examination has stated that he reached at the place of occurrence after the fire and his house is 500-600 passes away from the place of occurrence. Hence his statement that he reached at the place of occurrence after hearing the second fire, appears to be doubtful.

PW1 has stated that the blood of injured Vivekanand had fallen near the house of Girja Shanker, whereas PW5-Investigating Officer, has stated that when he had prepared the site plan he found no blood at the place of occurrence, hence he has not shown the same in the site plan. PW1 has stated before the trial Court that all the four accused respondents fired indiscriminately at Vivekanand and 8-10 rounds were fired but he has not seen any empty cartridges or Tikli at the place of occurrence. He further stated that his house was 200-250 paces away from the place of occurrence and moreover he reached the place of occurrence on hearing the alarm and noise which was from the side of house of Girja Shanker.

PW5, the Investigating Officer, has stated before the Trial Court that he did not found any cartridge or Tikli from the place of occurrence. Hence the version given by the prosecution is not true. The trial Court further found that PW4-Dr. M.L. Pushkar, who medically examined the injured Vivekanand found only one injury on the neck under the jaws. In the supplementary/X-Ray report of the injured no pellet was found, thus, the story as narrated by the prosecution in the FIR, does not appear to be correct and reliable. Hence the trial Court acquitted the accused respondents.

The trial Court further found that the version given by the accused respondents in their statement u/s 313 Cr.P.C. and in the FIR lodged from their side shows the correct prosecution story as narrated by them in their FIR in which three persons on their side namely Ravindra, Munesh and Mallu received serious injuries at the accused hands of Ravindra Nath, Pramod Nath, Vinod, Kapil, Mohan and Umakant and others and during which one pellet hit the injured Vivekanand. The said injuries from the side of the accused and the FIR has been filed as defence document in the present case and same have been proved.

The trial Court was of the view that the prosecution has failed to prove the injuries received by the accused respondents, for which no explanation has been given by it.

The trial Court after considering the entire evidence came to the conclusion that the version given by the defence appears more natural and probable as compared to the story of the prosecution, hence the prosecution has failed to prove this case beyond reasonable doubt against the accused respondents, for which an order of acquittal was passed by the trial Court.

Learned AGA on the other hand submitted that both sides have received injuries. The incident is admitted hence the trial Court has committed gross illegality in acquitting the accused respondents and there was sufficient evidence against them which warranted their conviction.

Having considered the totality of the present case, we are of the opinion that the view taken by the trial Court does not suffer from any perversity or illegality. It is a well settled law that the view taken by the trial Court should not normally be interfered with unless the other view taken by it is found to be perverse or unreasonable. Hence no interference is called for by this Court in the judgment and order passed by the trial Court acquitting the accused respondents.

The application for leave to appeal is rejected and the appeal is accordingly dismissed.