State of Uttar Pradesh vs Raj Kumar Alias Pappu and Another

Heard learned A.G.A. and perused the judgment and order of the trial court and record. The present Government Appeal along with application for leave to appeal has been filed by the State against the judgment and order dated 25-09-2004 passed by Additional Sessions Judge/ Fast Track Court No. 11, District Jalaun at Orai in S.T. No. 180 of 2003, State of U.P. Vs. Raj Kumar @ Pappu & others, by which the trial court has acquitted the accused-respondents for offence under Sections 504, 307 read with Section 34 I.P.C. and Section 302 I.P.C.

The prosecution story in brief is that on 01-04-2003, the informant-Om Prakash son of Gauri Shankar along with his brother Sidh Prakash and brother-in-law Mahendra Pal Singh son of Ramlal, resident of Mohalla Naya Patel Nagar, Orai were loading wheat on Tractor Trolley from their field. As soon as, the informant along with his companion who were taking the empty Tractor Trolley for collecting wheat reached at Mauza Sikanderpur near Kothi of Raj Kumar at about 8:45 p.m., Raj Kumar @ Pappu, Rahul, Ashok Kumar Sharma and Mahendra Kumar who were hidden by the side of the Chabutara of the Kothi came out and by abusing them asked to stop the Tractor Trolley. The Tractor Trolley was stopped there, they saw Raj Kumar @ Pappu armed with double barrel gun, Ashok Kumar Sharma armed with his licensee gun, Mahendra Kumar Mishra armed with gun and Rahul armed with father licensee gun. The informant was having inimical relationship with Raj Kumar @ Pappu with regard to land dispute due to the said enmity Raj Kumar @ Pappu with an intention to kill fired which hit his brother Mahendra Pal Singh on his thigh who was sitting next to him on the Tractor Trolley. Ashok Kumar Sharma fired a second shot due to which the informant and his companion escaped unheard. On raising alarm, the persons working at the spot, namely, informant''s father Gauri Shanker and his brother Satish Kumar, came running with the Torch in his hand and exhorted the accused then the informant gathered strength along with his companions and tried to snatch double barrel gun armed with Raj Kumar @ Pappu. During snatching the gun came in his hand and its butt has broken. The informant carried the injured Mahendra Pal Singh and the broken gun to police station Nadi Gaon where a First Information Report was lodged against the accused persons.

The First Information Report of the incident was lodged by PW 1-Om Prakash on 02-04-2003 at 2.45 in the night at police station Nadi Gaon which is at the distance of the place of occurrence 3 kms.

The post mortem of the deceased Mahendra Pal Singh was conducted on 02-04-2003 at 1.45 p.m. by Dr. A.K. Paliwal. The prosecution examined three eye witnesses of the incident, namely, PW 1-Om Prakash, the informant of the present case, P.W.4-Sidh Prakash real brother of the informant and P.W. 5-Gauri Shankar father of the informant and other formal witnesses such as P.W. 2-Head Constable Shivram Singh, P.W.3-Constable Ram Krishna, P.W.6- Dr. A.K. Paliwal, PW.7-S.I., Rakesh Raj Gautam, PW.8-S.I., Deepak Shukla who were the two Investigating Officers and the report of the Vidhi Vigyan Prayogshala which is marked Exhibit Ka-13 which is available on record.

The statements of accused-respondents were recorded u/s 313 Cr.P.C. and they have denied the prosecution story. The accused-respondent Raj Kumar @ Pappu has submitted a written reply to the Question No. 11 to put his defence and submitted that he has not fired on the deceased Mahendra Pal Singh. On the date and time of the incident, he was in Jhansi and had gone to see his Bahnoi -Budh Singh who was ill. He has further stated that the allegation against him that he had fired at the deceased Mahendra Pal Singh and the informant snatched away his gun is absolutely false.

The trial court acquitted the accused-respondents on the ground that the accused-respondents had no motive to commit the alleged crime. On contrary, it was informant and his father Gauri Shankar and other family members had strong motive to falsely implicate the accused-respondents in the present case. In this back ground, the accused-respondent Raj Kumar @ Pappu has stated in his written reply which is available on record that the informant is his real cousin brother. He has further stated that he was the only son of his father and after his father''s death, his grand father Mansha Ram had ancestral land in which his share was about 20 Bighas. His grand father was annoyed with him and his Uncle Gauri Shankar and his son Om Prakash and other wanted to grab his land. They have conspired to falsely implicate him in the present case. After he was sent to jail in the present case, PW 1-Om Prakash and other have got a sale deed executed by his grand father Mansha Ram of the share of his land and have usurp it.

PW.4-Sidh Prakash is the real brother of the informant. PW.1-Om Prakash and son of PW. 5-Gauri Shankar has also stated that Mansha Ram was also his grand father and the said sale deed was executed after 15-20 days of the land of accused-respondents by his grand father Mansha Ram in favour of PW 1-Om Prakash and others.

The trial court from the evidence of PW -1, PW-2 and PW -3 has come to the conclusion that the story with regard to the apprehending of accused-respondent-Raj Kumar @ Pappu and snatching of his gun by them does not inspired confidence and is not trust worthy. Moreover, the trial court found that PW 1-Om Prakash in his cross examination has stated that he did not caught hold the accused-respondent-Raj Kumar @ Pappu immediately when fire was shot but first he hide himself by the side of the Tractor Trolley and raised alarm on which Gauri Shankar PW.5 had come then he caught hold the accused-Raj Kumar @ Pappu. On the other hand, P.W.5-Gauri Shankar has stated before the trial court that it was PW 1-Om Prakash and PW 2 Sidh Prakash who have only snatched away the gun from the accused-respondent-Raj Kumar @ Pappu and during snatching the gun was broken. It was further found by the trial court from the evidence of PW 1 that PW. l had given a different version in his statement that the fire was shot from the distance of 10-11 steps and from there he caught hold the accused Raj Kumar @ Pappu. After that during scuffling with the accused the gun came in his hand and the accused had fled away. In such a situation, the catching of the accused by PW. 1 is not proved, hence the same is unworthy to be believed.

The trial court further found that the medical evidence does not corroborate the prosecution story, as stated by the eye witnesses. The trial court from the evidence observed that the deceased received one gun shot wound of entry and 4 gun shot exit which were all found on the left thigh of the deceased and the deceased died due to excessive bleeding. From the statements of the eye witnesses, namely, PW 1-Om Prakash and PW- 4 Sidh Prakash and PW-5-Gauri Shankar are taken into account then the manner in which injuries have been caused to the deceased it would have first hit him on the right side and thereafter, on the left side in the present case but all the injuries were found on the left side of thigh of the deceased. Hence, the testimony of the eye witnesses to have seen the incident appears to be doubtful.

The trial court from the evidence found that the Investigating Officer has recovered one empty cartridge from the place of occurrence which is alleged to have been fired from the gun by accused Raj Kumar @ Pappu which was snatched by the informant PW 1-Om Prakash. There is a report of Vidhi Vigyan Prayogshala, Agra from which it is apparent that the gun and cartridge which were sent for ballistic expert for his opinion has opined that it does not corroborate that the said cartridge was fired from the recovered gun of the accused due to want of characteristic features for the tally the cartridge with the DBBL gun. Hence after the opinion of the Expert, it has not been determined that the recovered cartridge was fired from the gun which was snatched from the accused Raj Kumar @ Pappu. Hence the story of snatching of the gun from the accused as stated by the eye witnesses is not proved and the statement of the accused has substance that his DBBL gun under what circumstances was taken from his house and a colour has been given by the prosecution witnesses that the same was snatched during scuffle with PW-1-Om Prakash.

The trial court further found that the Panchayatnama marked Exhibit Ka-2, from the perusal of which it is apparent that as the body of the deceased one Sandow Baniyan and blue colour Underwear in which there was elastic and on the right wrist a Kalawa was tied were found. The said Panchayatnama was proved by the PW 2-Constable Shivram Singh has proved the Panchayatnama. Further, in the cross examination this witness has cleared the fact that there was no Pant found on the body of deceased and he further did not keep the Pant separately along with the Sandow Baniyan and the Underwear which was only found in his body. P.W. 4 -Dr. A.K. Paliwal who had received dead body of the deceased for post mortem had found in the clothes of the deceased an Underwear, Banyayeen and Pant along with a Belt. The trial court observed that if it is ignored that under what circumstances a Pant was found on the body of the deceased and if the deceased was wearing the Pant then it should have bear the signs of fire shot on the Pant of entry and exit. During evidence, the prosecution has not drawn the attention of the trial court nor the prosecution witnesses have tried to give any evidence upon this aspect which creates doubt about the genuineness of the prosecution story.

It is the case of the prosecution that two fired shot, one which was said shot by Raj Kumar @ Pappu on the deceased which hit him and second shot was fired by Ashok Kumar Sharma which did not hit any one. The trial court from the evidence found that the story of the second shot which was introduced under what circumstances after due deliberation and consultation which further creates doubt about the testimony of the eye witnesses PW.1, PW 4 and PW 5.

From the evidence the trial court found that the presence of PW 1, PW.4 and PW 5 at the place of occurrence is also doubtful and moreover, no independent witness has come to support the prosecution story and it is highly unsafe to believe the testimony of three eye witnesses of the occurrence who are highly interested and partisan witnesses and have strong motive to falsely implicate the accused persons. Moreover, the Investigating Officer has also not interrogated any persons of the near by area during investigation about the incident taking place nor any independent person produced before the trial court in the absence of which the testimony of the alleged eye witnesses were found wholly unreliable.

The trial court from the evidence gathered that the place of incident is also not certain and there are contradictory version of the eye witness with respect to manner in which the injuries were caused to the deceased. The eye witnesses have stated that injuries were caused to the deceased from the front side whereas P.W.5 Dr. A.K. Paliwal stated that it was impossible.

So far as accused -respondent Rahul is concerned, the trial court found that he has been given no role in the incident by any of the eye witnesses in their evidence which shows his false implication in the case.

The learned A.G.A., on the other hand, argued that there is motive for the accused -respondents to commit the murder of the deceased. The eye witnesses have supported the prosecution story and the trial court has misread the evidence on record and have acquitted the accused-respondents. Hence, the judgment of the trial court is perverse and the same should be set aside.

Having considered the totality of the circumstances of the present case, we are of the opinion, that the view taken by the trial court is not perverse nor the same suffers from any illegality or infirmity as it is well settled law that if the two views are possible then the other view taken by the trial court should normally not be interfered with unless the same is found to be perverse or highly improbable or unreasonable. Hence, no interference is called for in the judgment and order passed by the trial court acquitting the accused-respondents, leave to appeal is rejected and Government Appeal is dismissed. Accordingly, Leave to Appeal is rejected and Government Appeal is dismissed.