Allahabad High Court
Kallu Alias Om Prakash Soni vs State Of U.P. on 24 July, 2017
Bench: Bharat Bhushan, Shailendra Kumar Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Case :- CRIMINAL APPEAL No. - 2993 of 2005 Appellant :- Kallu Alias Om Prakash Soni Respondent :- State Of U.P. Counsel for Appellant :- Seema Shukla,Ajatshatru Pandey,Arun K.Singh,D.D.Kushwaha,Jitendra Singh,Jitendra Singh Lodhi,K.N.Raha Counsel for Respondent :- Govt. Advocate,J.S. Chandel Hon'ble Bharat Bhushan,J.
Hon'ble Shailendra Kumar Agrawal,J.
(DELIVERED BY HON'BLE BHARAT BHUSHAN,J)
1. The appellant Kallu alias Om Prakash Soni has assailed the judgment and order dated 01.07.2005 passed by Special Judge (U. P. Dacoity Affected Areas Act, 1973) Hamirpur in joint trial of Special Case No. 49 of 2002 arising out of Case Crime No. 94 of 2002 and Special Case No. 48 of 2002 arising out of Case Crime No. 95 of 2002, Police Station (in short "P.S.") Rath, District Hamirpur whereby appellant was convicted under section 302 of the Indian Penal Code 1860 (in short "IPC") and 25 Arms Act 1959 (in short "Arms Act").
2. Appellant was sentenced to life imprisonment and a fine of Rs. 2000/- with default stipulation under section 302 IPC, three years rigorous imprisonment (in short "R.I") and a fine of Rs. 1000/- under section 25 Arms Act with default stipulation. Both sentences were to run concurrently.
3. However, appellant Kallu alias Om Prakash Soni was acquitted under section 394 IPC. It is pertinent to point out that two more accused namely, Chandra Pal and Indra Pal were also prosecuted in the same common trial but they were completely acquitted under sections 302, 392 and 411 IPC by the same judgment.
4. Prosecution story in brief is that informant Satish (P.W.-2), resident of town Rath went to his T.V. repairing shop on 04.05.2002. His father Parmeshwari Dayal (P.W.-1), a teacher by profession, went to village Aodera to teach in Primary School. His mother deceased Leela Devi was all alone at their residence. At 11.00 A.M. informant Satish (P.W.-2) and his friend Devendra (P.W.-3) went to the residence of Satish for lifting inverter battery. The house was closed from inside. They knocked the door repeatedly. No one opened the door. Both of them peeped inside the house through opening in the door and noticed the presence of appellant Kallu alias Om Prakash Soni and his two companions namely, Indra Pal (acquitted) and Chandra Pal (acquitted). The informant called out their names but all three of them went inside the house first but subsequently appellant Kallu alias Om Prakash Soni, armed with country made pistol, opened the door and asked them to run away. He also tried to escape, however, he was caught by informant Satish (P.W.-2), Devendra (P.W.-3) and other people of the vicinity. He was immediately disarmed.
5. These people went inside the house and found the dead body of Leela Devi. Meanwhile two co-accused went to the roof and from there they escaped. It was discovered that jewellery worth Rs. 35000/- had been looted and Leela Devi was murdered.
6. Informant Satish lodged a report (Exhibit Ka-2) at about 12.10 P.M. at P.S. Rath located almost 2 kms away from the place of occurrence. Meaning thereby, that the report was lodged within 70 minutes of the incident. The Chik report (Exhibit Ka-5) was carved out. Relevant entries were made into General Diary of the Police (in short "G.D."), extract of which is available on record as Exhibit Ka-6. A Fard (Exhibit Ka-7) was also prepared for recovery of one country made pistol of 38 bore and 3 live cartridges of the same bore. A fard (Exhibit Ka 8) was prepared regarding arrest of appellant Kallu alias Om Prakash Soni.
7. P.W. 9 Sub Inspector (in short "S.I.") Raj Pal Singh prepared inquest report (Exhibit Ka-10) on the instructions of the Investigating Officer (in short "I.O."). P.W.-10 Shyam Lal Pandey, the then Station House Officer (in short "SHO"), Rath. Other documentation was also done. The I.O. Shyam Lal Pandey commenced investigation by recording statements of various witnesses, prepared site plan (Exhibit Ka -15) and Fard (Exhibit Ka-14) of recovery of rope, plastic and tape etc. Subsequently, this investigation was entrusted to new SHO, Rath namely P.W.-11 Kalu Ram Dohre, who took co-accused Indra Pal and Chandra Pal on police remand and recovered some articles of jewellery at their instance. This new I.O., also recorded some statements, obtained sanction (Exhibit Ka-18) to prosecute appellant Kallu alias Om Prakash Soni under Arms Act from the District Magistrate, Hamirpur and then filed charge sheet (Exhibit Ka-17) under 25 Arms Act. On completion of investigation, a charge sheet (Exhibit Ka-19) under sections 302, 394 and 411 IPC was also submitted against three accused including appellant Kallu alias Om Prakash Soni.
8. Trial judge charged appellant Kallu alias Om Prakash Soni and his two companions under sections 302 and 394 IPC. Two co-accused were also charged under section 411 IPC separately while accused Kallu alias Om Prakash Soni was also charged under section 25 Arms Act. Accused persons, including the appellant denied all allegations and desired to be tried.
9. Prosecution has produced 11 witnesses in support of its allegations namely, P.W.-1 Parmeshwari Dayal (husband of deceased), P.W.-2 Satish Chandra Soni (son of deceased), P.W.-3 Devendra, P.W.-4 Krishna Kumar Mishra, P.W.-5 S.S.I. Ayodhya Prasad Mishra (witness of recovery), P.W.-6 Dr. R.P. Pandey (conducted autopsy), P.W.-7 Constable Hari Babu, P.W.-8 Raja Ram, then City Magistrate, Jhansi (conducted identification of stated recovered articles), P.W.-9 S.I. Raj Pal Singh (prepared inquest report), P.W.-10 Inspector Shyam Lal Pandey (First I.O.) and P.W. 11 Inspector Kalu Ram Dohre (second I.O.).
10. The statements of accused persons, including appellant Kallu alias Om Prakash Soni were recorded under section 313 of the Code of Criminal Procedure 1973 (in short "Cr.P.C.") and all accused denied allegations and claimed false implication. Appellant did not produce any evidence in defence despite opportunity. On conclusion of trial, the learned Special Judge found appellant Kallu alias Om Prakash Soni guilty of offence under sections 302 IPC and 25 Arms Act and sentenced him, as aforesaid. However, appellant was acquitted under section 394 IPC. His stated companions namely, Chandra Pal and Indra Pal were also acquitted under section 302, 394 and 411 IPC vide judgment dated 01.07.2005. This judgment is under challenge before this Court.
11. As stated earlier, this appeal has been filed by only convicted accused namely Kallu alias Om Prakash Soni, who has been represented by Sri Arun Kumar Singh, Advocate appointed by Legal Aid Committee. Sri Ajit Ray, learned AGA has represented the State.
12. Learned counsel for the appellant has argued that appellant has been falsely implicated in the case; that no direct evidence of assassination is available; the First Information Report (in short "FIR") was ante timed; no witness of the locality was available; and presence of father of informant P.W. 1 Parmeshwari Dayal has not been established. Submission is that even the presence of informant Satish (P.W.-2) has not been established.
13. On the contrary, learned AGA has argued that the presence of appellant is established by trustworthy evidence. There was no reason for informant to spare the real culprit and to implicate the appellant falsely. Submission on behalf of the State is that the appellant was arrested red handed with unauthorized and illegal possession of country made pistol and live cartridges.
14. It is true that there is no evidence on record to establish the actual fact of assassination. Prosecution story itself says that when P.W. 2 Satish and P.W.-3 Devendra went to the house of the informant for lifting inverter battery, they found the door of the house closed from inside. They, in fact, noticed the presence of the appellant and his companions by peeping inside of the house through the opening of the door. When they called out the names of the persons, both the co-accused went to the roof and slipped off. However, appellant Kallu alias Om Prakash Soni, armed and brandishing the country made pistol, brazenly opened the door of the house and threatened informant Satish (P.W.-2) and his companion Devendra (P.W.-3). The incident occurred during day time at about 11.00 A.M. The door of the house was closed from inside and when the door was opened, only two persons were found inside one, Kallu alias Om Prakash Soni, the appellant in this case and second the cadaver of deceased. The deceased had been done to death due to ante mortem smothering. P.W.-6 Dr. RP Pandey, found following injury on the person of deceased:
A circumferential ligature mark print all around the neck measuring 27 cm x 2 cm.
15. The post mortem report (Exhibit Ka-6) concludes that deceased Leela Devi died on account of asphyxia due to ante mortem injuries. This post mortem was conducted on 05.05.2002 at about 8.00 A.M. The report concludes that deceased certainly died around 10.00-10.30 A.M. on 04.05.2002. This conclusion is consistent with the prosecution story. The informant himself says that he went to his residence somewhere around 11.00 A.M. The examination of post mortem report (Exhibit Ka-4) and analysis of testimony of P.W.-6 Dr. R.P. Pandey indicate that the deceased did not die of natural death. Her death was a result of homicide.
16. Evidence of P.W.-2 Satish, P.W.-3 Devendra and P.W.-4 Krishna Kumar Mishra has established presence of accused Kallu alias Om Prakash Soni in the house of the deceased. P.W.-2 Satish and P.W.-3 Devendra, in fact, noticed the presence of appellant Kallu alias Om Prakash Soni by peeping inside the house through door hole. The door was subsequently opened by accused Kallu alias Om Prakash Soni and he was grabbed by both the two witnesses with the help of some other local persons. He was armed with country made pistol and three live cartridges. The evidence of P.W.-2 Satish Chandra Soni and P.W.-3 Devendra is highly natural, in accordance with normal human conduct, credible and trustworthy. They faced intensive cross- examination but nothing favourable could be extracted by this cross-examination.
17. P.W.-2 Satish Chandra Soni has testified that he had left his residence in the morning for attending his T.V. repair shop in the market. His father had also left to village Audera to teach in Primary School and at that time the deceased's mother was all alone in the house. He has also pointed out that appellant Kallu alias Om Prakash Soni was known to family and had been frequent visitor to their residence. In such a scenario, opening of door by 55 year old lady for a known family friend or acquaintance was hardly surprising. But unfortunately for accused, the informant Satish, who used to spend almost whole day at his shop, came to residence for lifting the inverter battery as Inverter battery of his T.V. shop was discharged. P.W.-3 Devendra was, in fact, waiting for him in the shop and both of them came together to residence of informant, located in Chaubatta Mohalla. Door was locked from inside. There was nothing abnormal about it but when the door was not opened for several minutes, they peeped inside the house through the door hole and then they found the abnormal presence of the appellant Kallu alias Om Prakash Soni. When they called out his name, the appellant opened the door while brandishing a country made pistol. He probably thought that he will manage to run away at gun point. Unfortunately for him, the informant Satish (P.W.-2) and his companion Devendra (P.W.-2) and some other persons managed to nab him.
18. Presence of appellant Kallu alias Om Prakash Soni and the homicidal death of deceased has also been re-enforced by P.W.-4 Krishna Kumar Mishra, who was present near children's park at about 11.00 A.M. This witness has testified that he reached the house of informant Satish on hearing the commotion emanating from there and found that Kallu alias Om Prakash Soni had been nabbed by informant Satish and another person. He has also supported the claim that a country made pistol and live cartridges were recovered from him. Testimony of this witness too, is credible and trustworthy. There is no enmity between witnesses of fact and appellant. There is no reason for them to falsely implicate him. It is pertinent to point out that presence of appellant Kallu alias Om Prakash Soni inside the house of deceased Leela Devi has been established beyond reasonable doubt. It is also clear that deceased Leela Devi was alive in the morning and once appellant Kallu emerged from her residence brandishing country made pistol, only the cadaver of deceased was found. The fact that deceased had been done to death by using a rope to create asphyxia, is evident from medical report.
19. It is true that two more persons were noticed by P.W.-2 Satish and P.W.-3 Devendra and both of them have been acquitted by trial court but that does not absolve appellant Kallu alias Om Prakash Soni from explaining his presence inside the house of deceased Leela Devi at relevant point of time. He has neither explained his unusual presence inside the house of deceased nor explained the reason of possessing and brandishing country made pistol. We believe that there is sufficient evidence on record to establish unusual presence of appellant Kallu alias Om Prakash Soni inside the house of deceased at 11.00 A.M. on 04.05.2002. We also believe that he was caught by P.W.-2 Satish and P.W.-3 Devendra with the help of local persons on the spot and ultimately he was handed over to the police personnel at P.S. Rath. The provisions of section 106 Indian Evidence Act 1872 (Evidence Act) would come into play. We believe that only two persons were found in the house at the relevant point of time; one of them namely Leela Devi was found dead, therefore, it was incumbent upon appellant Kallu alias Om Prakash Soni to explain not only his unusual presence inside the house but also the circumstances surrounding the death of deceased. His claim that he was called in the evening by police at police station and then a false case was foisted upon him is not acceptable at all.
20. More so, Section 106 of Evidence Act cannot be ignored in the facts and circumstances of the case. The offence as alleged could have been committed by the accused appellant in the manner, as alleged by the prosecution and fully corroborated by the direct evidence of the prosecution witnesses and the other material available on record and the body of deceased was also found from inside the closed house of the deceased. Therefore, it is required under law that the special facts, which are in the special knowledge of the accused appellant should have been explained by him only, by submitting cogent and plausible explanation. This burden has also not been properly discharged by him.
21. The Apex Court in the cases of State of West Bengal Vs. Mir Mohd. Omar [(2000) 8 SCC 382], Harijan Bhala Teja Vs. State of Gujarat [2016 (4) SCALE 397], State of Himanchal Pradesh Vs. Rajiv Jassi [AIR 2016 SC 2241], lays emphasis on the application of Section 106 of the Evidence Act in the incidents alike the case in hand. In this respect the Apex Court in the case of Mir Mohd. Omar (Supra) has held as follows:-
"The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty."
22. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
23. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when section 114 was incorporated in the Evidence act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
24. When it is proved to the satisfaction of the Court that Leela Devi was done to death inside the house at relevant point of time and accused was seen by P.W.-2 Satish and P.W.-3 Devendra through the hole of the door, the accused alone knew what happened to Leela Devi. If she was found murdered in the presence of the appellant, the permitted reasoning process would enable the Court to draw the presumption that the accused has murdered her. Such inference can be disrupted if the accused would tell the Court what else happened to Leela Devi (deceased).
25. Therefore, if an offence takes place inside the privacy of a house and in such circumstances, where the appellant has all the opportunity to plan and commit the offence at the time and circumstance of his choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. Affirming the applicability of Section 106 of the Evidence Act in these cases, in the decision of State of Rajasthan Vs. Jaggu Ram [(2008) 12 SCC 51] at para 28, the observation made in the judgment of Trimukh Maroti Kirkan Vs. State of Maharashtra [(2006) 10 SCC 681] had been reiterated by the Apex Court as under:-
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A judge does not presides over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315] quoted with approval by Arijit Pasayat, J. in State of Punjab V. Karnail Singh [2003 (11) SCC 271]. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmate of the house to give a cogent explanation as to how the crime was committed. The inmate of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
26. Similar view has also been expressed in State of Punjab vs. Karnail Singh [2003 (11) SCC 271], State of Rajasthan vs. Kashi Ram [2006 (12) SCC 254] and Raj Kumar Prasad Tamakar vs. State of Bihar [(2007) 10 SCC 433].
27. The judgment of Vivian Bose,J. in the Apex Court's decision in Shambu Nath Mehra Vs. State of Ajmer, [AIR 1956 SC 404], lays down the legal principle underlying the shifting of burden of proof under Section 106 of the Evidence Act thus (vide para 38):
"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."
28. Consequently, Section 106 of the Evidence Act is squarely applicable in this case, as pointed out in Mir Mohd. Omar (Supra) and Shambu Nath Mehra (supra). The rule in Section 106 of the evidence Act would apply when the facts are 'especially in the knowledge of the accused' and it would be impossible, at any rate, disproportionately difficult for the prosecution to establish the said fact, 'especially within the knowledge of the accused'.
29. In the present case also, by the ample cogent evidence, the prosecution did proceed on the footing that the incident in question was committed inside the closed house of the deceased as well as in the presence of the appellant Kallu alias Om Prakash Soni and so the facts were 'especially within the knowledge of the accused persons', therefore, the principle of Section 106 of the Evidence Act shall apply in this case.
30. In this case appellant Kallu alias Om Prakash Soni cannot get away by simply remaining quiet and offering no explanation or giving false explanation on the supposed premise that the burden to establish the case lies entirely upon the prosecution and there is no duty at all on the appellant-accused person to offer an explanation as to how the homicidal death of the deceased happened in her house on the date, time and place of the occurrence. When the appellant offers false and concocted explanation as to the above facts, which were 'especially within his knowledge' it is a strong circumstance against the appellant also that he is responsible for the commission of the crime.
31. Learned counsel for the appellant has also argued that FIR was ante timed. This argument is based due to some stated discrepancies. P.W.-1 Parmeshwari Dayal, husband of the deceased has stated that he returned back at about 12.30 P.M. to his residence and found his wife dead. Some jewellery had been taken away from his residence and that the appellant had been caught by his son Satish etc. Learned counsel for the appellant has argued that FIR had been lodged at 12.10 P.M. at P.S. Rath, which was almost 2 kms away from the place of occurrence. Argument is that if P.W. -1 Parmeshwari Dayal saw the accused appellant and his son at 12.30 P.M. still at his residence then evidently the timing of lodging of the FIR seems to have been manipulated. Learned counsel for the appellant has also pointed out that the claim of this witness that when he came out of his residence two constables were also found. His submission is if by this time, report had not been lodged then the presence of two constables needs to be explained by prosecution and failure to provide any explanation in this regard would create doubt about the prosecution story and the evidence.
32. We believe that this argument of learned counsel for the appellant is misconceived. The explanation is available in the record itself. The prosecution evidence has indicated that Police Station Rath is almost 2 kms away from Mohalla Chaubhatka located in the town Rath. However, a police Chauki is also available, which is merely 300-400 meters away from the place of occurrence. P.W.-3 Devendra has pointed out that as soon as appellant Kallu alias Om Prakash Soni was caught by Satish and people of the vicinity, his country made pistol was taken away from his hands.
33. Devendra has also specified that in fact he went, with this country made pistol, to the police Chowki and communicated the entire incident to the constable at Police Chowki. The police personnel thereafter communicated the information to Kotwali Rath and subsequently the formal report was lodged by P.W.-2 Satish at P.S. Rath. This witness has pointed out that he spent around 10 minutes with P.W.-2 Satish and then went to Police Chowki and thereafter communicated the information to the Kotwali. He spent time in arranging photographs and informing other person about the incident as well. Meanwhile P.W.-2 Satish had lodged the report at Police Station. As far as time of return of P.W.-1 Parmeshwari Dayal is concerned, it is obviously based on guesstimate. We are sure that neither P.W.-1 Parmeshwari Dayal nor anybody else noted the exact time at each stage of incident. Their testimony is based on guesstimate and the discrepancy of few minutes cannot discredit the entire trustworthy evidence of prosecution.
34. Evidence has, in fact, disclosed the atmosphere of place of occurrence subsequent to this incident. Witnesses have deposed that sense of dread and helplessness prevailed over the place of occurrence. A sudden murder of woman of the house from the hand of known person is not an everyday affair and we can very well visualize the situation of the spot on the day of occurrence in the aftermath of the discovery of cadaver of Leela Devi. Presence of two constables of the Police Chowki introduced by P.W.-1 Parmeshwari Dayal has also been explained by P.W.-3 Devendra. The recovery of country made pistol and three live cartridges has been proved by virtually all the witnesses of fact. The Fard (Exhibit Ka-6), also signed by informant Satish, has also demonstrated and established the recovery of country made pistol. Extract of G.D. (Exhibit Ka--6) also reinforced the prosecution allegations.
35. We have carefully perused the contents of inquest report (Exhibit Ka-10). It discloses the recovery of dead body and its condition clearly. It is pertinent to point out that the inquest proceedings were initiated at 12.30 A.M. and had been completed at 1.30 A.M. on the same day. It contains the crime number as well as details of crime. This further obviates any possibility of manipulation of official record.
36. Learned counsel for the appellant has also submitted that no witness of the vicinity was produced by the prosecution. This argument is also not sustainable. Kasba Rath is a small place. P.W.-4 Krishna Kumar Mishra has been produced by the prosecution and he has reinforced the prosecution story. He has explained that he was standing near children's park, which is located almost 15 paces away from the residence of the informant Satish (P.W.-2). He claims that he came to Betel shop from his own shop of Kot Bazar. He has explained that he does not chew pan masala in presence of his brother, therefore, he took few steps away from his own shop and he was standing near children's park.
37. We believe his explanation is natural and consistent with normal human conduct. Even today, large number of people do not smoke, eat beetle or chew pan masala in the presence of their elders, specifically in small towns. Kasba Rath is a small place. Therefore, to say that everybody has to explain his presence at a particular point of time is not reasonable attitude. We believe that P.W.- 4 Krishna Kumar Mishra was present and he reached the place of occurrence after hearing the commotion. He has established the presence of appellant Kallu alias Om Prakash Soni at the place of occurrence. He has also established the recovery of country made pistol from appellant Kallu alias Om Prakash Soni. This witness has also described the position of cadaver of deceased, which is not only consistent with the testimony of other witnesses but also with the description enshrined in the inquest report (Exhibit Ka-10).
38. We do not believe that testimony of any other witness was required. The testimony of P.W.-4 Krishna Kumar Mishra is independent and trustworthy. There is no evidence on record to suggest that the FIR was ante timed or manipulated in any manner.
39. Learned counsel for the appellant has argued that some jewellery was found on the person of the deceased and that falsify the claim of prosecution that deceased was done to death for robbery.
40. We do not think that it is necessary to discuss this point for the simple reason that trial court itself was not convinced of offence under sections 394 and 411 IPC, therefore, two persons namely Chandra Pal and Indra Pal were acquitted. Even appellant Kallu alias Om Prakash Soni was acquitted for the offence under sections 394 IPC. No State appeal has been filed against that order, therefore, no useful purpose would be served by discussing the acquittal of co-accused.
41. It is pertinent to point out that acquittal of two persons would not create any legal obstrucle or impediment as far as the conviction of appellant Kallu alias Om Prakash Soni is concerned. There is no law, which says that merely because some persons have been given benefit of doubt the others should also be acquitted for the same reason.
42. We believe that if evidence is available against even one person then that person can be convicted despite the acquittal of other person on similar evidence. The acquittal of other persons can be challenged but that cannot be a ground for acquittal of other convicted person, if evidence against that person is credible and trustworthy.
43. We have carefully perused the material on record. We believe that prosecution has brought home the guilt of appellant Kallu alias Om Prakash Soni with trustworthy evidence. We see no ground to interfere with the conclusions of trial judge.The appeal is, therefore, liable to be dismissed. 44. The appeal is, hereby, dismissed. The judgment and order dated 01.07.2005 passed by Special Judge (Dacoity Prohibited Area Act, 1973) Hamirpur in joint trial of Special Case No. 49 of 2002 arising out of Case Crime No. 94 of 2002 and Special Case No. 48 of 2002 arising out of Case Crime No. 95 of 2002, P.S. Rath, District Hamirpur whereby appellant was convicted under section 302 IPC and 25 Arms Act is, hereby, affirmed.
45. The appellant Kallu alias Om Prakash Soni is said to be in jail. He will serve out his remaining sentence.
46. Office is directed to certify this judgment to the concerned court through Sessions Judge, Hamirpur within ten days. The concerned court will report compliance within one month thereafter.
Order date:24.07.2017 shailesh