High Court
Case Details
1 Neutral Citation No. - 2023:AHC:182190-DB Court No. - 42 Case :- GOVERNMENT APPEAL No. - 122 of 1986 Appellant :- State of U.P. Respondent :- Khayali Ram And Others Counsel for Appellant :- A.G.A. Counsel for Respondent :- Govind Saran Hajela,Krishna Dutt Tiwari Hon'ble Surya Prakash Kesarwani,J. Hon'ble Ms. Nand Prabha Shukla,J. 1. This appeal has been filed praying to set aside the judgment and order dated 23.09.1995, in Session Trial No.750 of 1984 under Sections 302/307/34 I.P.C. P.S. Baniyather, Tehsil Vilari, District Moradabad whereby the accused - opposite parties, namely, Khayali Ram son of Prasadi Lal, Bhagwan Das son
Legal Reasoning
7. We find that no explanation could be offered by the prosecution that how was first information report registered at 04:40 P.M. with respect to the incident in question of 03:00 P.M. when the first informant proceed after two hours and took one hour to reach the police station after getting the application for first information report written in the way in a bazar from one Ram Kumar – a tube-well operator? Thus, the FIR in question is ante time. The motive assigned by the prosecution behind the incident in question is totally unbelievable and could not be proved. We have already briefly noted the motive assigned and the conflicting and inconsistent evidence of the 4 prosecution witnesses to show that the motive could not be proved by the prosecution against the accused persons. 8. The accused opposite party No.1 and accused opposite party No.3 have already died. The only surviving accused is the opposite party No.2 Bhagwan Das. As per first information report and evidences of the prosecution witnesses, the role assigned to Bhagwan Das is that he caused injuries to the deceased Ram Kishan by pharsa. Perusal of the injury report of all the three injured persons clearly reveals that they had not received any injury caused by pharsa. Therefore, the ocular evidence of P.W.-1, P.W.-2 and P.W.-3 is inconsistent with the medical evidence. It has not been denied by the prosecution that the deceased Ram Kishan was having number of enemies and his antecedent and background was not good inasmuch as he was involved in a docaity case, two cases under the Excise Act and two cases under the Gambling Act. No independent witnesses could be examined by the prosecution although according to the prosecution, number of persons were collected on the date, time and place of incident. The population of the village in question has been admitted to be more than six thousand. Thus, in these circumstances, it is totally unbelievable that the prosecution could not get any independent witnesses. 9. Considering the facts and evidences on record, we do not any error in the impugned judgment and order passed by the learned Trial Court. The appeal lacks merit and deserves to be dismissed. 10. For all the reasons aforestated, we do not find any merit in this appeal.
Arguments
of Khyali Ram and Smt. Dulari wife of Khayali Ram have been acquitted. 2. The appeal qua the accused - opposite party No.1 – Khayali Ram and the accused – opposite party No.3 – Smt. Dulari, wife of Khayali Ram was abated by order dated 03.12.2021 as both these opposite parties have died. 3. Heard Sri K.P. Pathak, learned A.G.A. for the appellant and Sri Krishna Dutt Tiwari, learned counsel for the accused opposite party No.2, who is only surviving opposite party. 4. As per First Information Report being Case Crime No.80/1984 lodged on 27.03.1984 at 04:40 P.M. with respect to an incident occurred on the same day at about 03:00 P.M., informing that the accused opposite party No.1 Khayali Ram armed with lathi, accused opposite party No.2 Bhagwan Das armed with pharsa and accused opposite party No.3 Dulari armed with gadasi had attacked the deceased Ram Kishan, his wife Ramwati and the first informant Vijay Singh. Initially, the aforesaid First Information Report was 2 registered under Sections 323/ 324 I.P.C., P.S. Baniyather, Tehsil Vilari, District Moradabad but after the death of the aforesaid Ram Kishan, Section 304 was also added. Injuries were examined by P.W.-5 Dr. B.R. Hora, at the Civil Hospital, Chandausi, who found the injuries of the aforesaid first informant/ P.W.-1 Vijay Singh to be simple. He also found that out of nine injuries received by Ramwati, except injuries No.1, 4, 6 and 8, the rest of the injuries were simple. All the injuries were caused by some blunt object. The injured Ram Kishan who subsequently died, had received eight injuries. During examination of injuries, he was vomitting. His injuries were also found to have been caused by some blunt object. None of the injuries were caused to any of the injured by any sharp edged weapon. The prosecution produced three eyewitnesses i.e. first informant P.W.-1 Vijay Singh, the injured eyewitness P.W.-2 Ramwati and the P.W.-3 Hori Lal. 5. After considering the evidence, the learned Trial Court came to the conclusion that the ocular evidence is inconsistent with medical evidences, no motive could be proved by the prosecution, the antecedent of the deceased Ram Kishan was bad and he was having number of enemies, no independent witness could be produced and the witness P.W.-2 Hori Lal is not an independent witness but is under the influence of the police. The first informant P.W.-1 was found to be a chance witness. No incised wound of a sharp edged weapon was found either on the body of the deceased or the injured witnesses. The FIR was found to be ante time inasmuch as, as per evidence of the first informant – P.W.-1, Vijay Singh, the incident took place at about 03:00 P.M. and he left the village after two hours and took one hour to reach police station after getting the application written for lodging first information report on the way in bazar from one Ram Kumar – tube-well operator. The village in question has a population of more than six thousand persons and as per prosecution story, large number of people were collected at the place of incident but no independent witness could be examined by the prosecution. The accused opposite party No.1 Khayali Ram was aged about 65 3 years at the time of incident and he could not cause injuries to so many injureds but could have been overpowered easily by the injured persons. The lathi recovered by the Investigating Officer could not be proved. The accused Khayali Ram is the real brother of the deceased Ram Kishan, the accused Dulari is the wife of Khyali Ram and the accused Bhagwan Das is the son of Khayali Ram. The injured Ramwati is the wife and Vijay Singh is the son of the injured/ deceased Ram Kishan. Thus, the accused opposite parties are close relatives. As per evidence of eyewitnesses, the accused and the injured persons were not on talking terms from last several years. Therefore, the motive assigned by the prosecution that the accused were annoyed as the deceased Ram Kishan brought the wife of the opposite party No.2 to the home of the accused persons, could not be proved. Learned trial court correctly came to the conclusion that if the accused and the injured were not on talking terms from last several years, then there was no occasion for the deceased Ram Kishan to bring the wife of the accused opposite party No.2 to the home of the accused persons. Briefly on these facts and evidences, the learned Trial Court came to the conclusion that the accused opposite parties have been falsely implicated and the prosecution has completely failed to bring home the guilt of the accused opposite parties beyond reasonable doubt. 6. We have carefully considered the submissions of the learned counsels for the parties and perused the record.
Decision
Consequently, the appeal is dismissed. 11. Office is directed to communicate this order to the trial court and send back the lower court record to the court concerned. Order Date :- 20.09.2023 NLY Digitally signed by :- NAND LAL YADAV High Court of Judicature at Allahabad