State of Uttarakhand vs Moosha and others

The State has come up in appeal against the judgment dated 08.02.2012 rendered by learned Additional Sessions Judge/IIIrd F.T.C., Haridwar in Sessions Trial No.284 of 2004, whereby the respondents, who were charged with and tried for the offences under Section 307, 504 and 506 of IPC, have been acquitted. Kalwa, one of the co-accused has died on 25.08.2011 during the trial.

The case of the prosecution, in a nutshell, is that PW-1 Sitaram has filed a written report on 12.11.2002 to the effect that on 10.11.2002 at about 07.30 p.m., Kalwa had come to his shop in drunken condition and he asked for credit. He refused. Kalwa threatened him. After 45 minutes, he came with Azad, Ram Singh and Moosa armed with country made pistol. Kalwa fired on him. He ducked and saved himself. On

hearing the gunshot, his brothers namely Shreepal and Hoiya came at the spot.

The first information report was registered and the matter was investigated and Challan was put up before the Court after completing all the codal formalities.

The prosecution has examined a number of witnesses in order to prove its case.

The statements of respondents were also recorded under section 313 Cr.P.C. They have denied the case of the prosecution and claimed to be tried. After conclusion of the trial, the respondents were acquitted by the impugned judgment dated 08.02.2012. Hence the present appeal by the State.

Mr. Amit Bhatt, Dy. Advocate General appearing on behalf of the State/appellant, has vehemently argued that the prosecution has proved its case against the respondents.

Mr. Mohd. Safdar, Advocate for the respondents has supported the impugned judgment dated 08.02.2012.

We have heard learned counsel for the parties and gone through the impugned judgment and lower court record carefully.

PW-1 Sitaram testified that on 10.11.2002 at about 07.30 p.m. Kalwa had come to his shop. He asked for credit. He refused. Thereafter, Kalwa started abusing

him. Kalwa came back at about 08.15 p.m. to his shop with his friends namely Azad, Ram Singh and Moosa armed with country made pistol. Kalwa fired at him. He ducked and save himself. Hearing the voice of gunshot, his brothers namely Shreepal and Hoiya came at the spot. He tried to catch hold of Kalwa, however, Kalwa escaped.

PW-2 Shreepal and PW-3 Hoiya in their cross examination have deposed that they have reached at the spot after hearing the gunshot. However, PW-2 Shreepal in his cross examination deposed that he was not in his house. He was in the locality. He had gone to the house of Sajit. He was sitting with Sajit in his house. He came back at 08.45 p.m.-09.00 p.m., when he was told the incident by his brother alongwith residents of the locality. Similarly PW-3 Hoiya though in examination in chief deposed that he came at the spot after hearing of gunshot, but in his cross examination he deposed that he had gone for feast at Laboli. Motiram was with him. He came back at 09.00 p.m. to 09.15 p.m. Thereafter, his brother told him about the incident. Thus, it is duly proved that neither PW-2 Shreepal nor PW-3 Hoiya were present on the spot. There is also contradiction in the manner in which incident has been happened, as deposed by PW-1 Sitaram and spot map prepared on the spot.

The incident happened on 10.11.2002 but FIR was lodged belatedly on 12.11.2002. No cogent explanation has been given why there is delay in lodging the first information report. According to the report,

PW-1 Sitaram has not received any injury though according to PW-2 Shreepal, Kalwa has pushed down his brother on the ground and had given beatings for 7-8 minutes. The blood was oozing out. PW-3 Hoiya also deposed that his brother was beaten up for 15-20 minutes and the blood was oozing from his head. PW-1 has not deposed that he was beaten up by Kalwa.

Consequently, in view of the observations and discussion made hereinabove, the prosecution has not proved its case beyond reasonable doubt.

Learned Trial Court has correctly appreciated the evidence. Accordingly, there is no force in the present government appeal and the same is hereby dismissed.

Let a copy of this judgment with lower court record be transmitted to the court below.