Allahabad High Court
State Of U.P. vs Rajendra Yadav And Ors. on 12 March, 2004
Equivalent citations: 2004CRILJ4479
Author: Onkareshwar Bhatt
Bench: M.C. Jain, Onkareshwar Bhatt
JUDGMENT Onkareshwar Bhatt, J.
1. All the five accused respondents were tried for offences under Sections 148 I. P. C. Accused respondent Ram Lakhan was further tried for an offence under Section 302 (simpliciter) and the rest under Section 302 read with Section 149 I. P. C. All of them have been acquitted by judgment dated 4-8-1981 passed by the then II Addl. Sessions Judge, Ghazipur. The accused respondents Rajendra Yadav, Kailash Yadav, Bhanshraj Yadav and Deoki Nandan Yadav were tried in S. T. No. 301 of 1980 while accused respondent Ram Lakhan was tried in S. T. No. 24 of 1981.
2. Informant Rajdev Yadav P. W. 1 along with his brother Raj Narain (deceased of the case) lived in village Salempur Baghai police Station Bhurkura district Ghazipu. Sadat Bazar is at a distance of six miles from the village of the informant. On 2-8-1980 at about 3 P. M. the informant along with Raj Narain was returning from Sadat Bazar towards his village on one cycle. When they reached Pertia Seewan, which is in village Ahiayee on the way and were near the field of Sripat Bhar, all the five accused respondents, who were sitting in ambush, came on the road. Accused Ram Lakhan Yadav was armed with a gun, accused Rajendra Yadav and Kailash Yadav were armed with Gandasas while accused Banshraj Yadav and Deoki Nandan were armed with spears at that time. Accused respondent Rajendra Yadav exhorted that time was opportune to take revenge of the murder of his father. The informant Rajdev Yadav started running southward leaving his cycle, whereupon the accused Ram Lakhan Yadav fired at Raj Narain, Raj Narain staggered while the accused having Gandasas, wielded the same on Raj Narain. Raj Narain fell down. In all four shots were fired by Ram Lakhan on Raj Narain. The two accused having spears also assaulted Raj Narain after he had fallen down. The informant Rajdev Yadav stood at a distance of 7 or 8 Lathas from the place of occurrence and raised alarm. The alarm attracted P. W. 2 Ghurmari and P. W. 3 Ram Chandra besides Nathai, Ram Murti and Chandradev before whom also the accused persons continued to assault Raj Narain. On further alarm some more persons arrived when the accused ran away. The informant Rajdev Yadav prepared written report of the occurrence which was lodged at 6.50 P. M. at Police Station, Sadiabad. The chik F. I. R. was prepared by Head Constable Surya Dev Pandey P. W. 6. At that time Surya Bali Singh Investigating Officer P. W. 5 was present at the police station. He took up the investigation and reached the place of occurrence at 7.55 P. M. The dead body of the deceased Raj Narain was sent for postmortem examination, which was conducted by Dr. S. K. Srivastava P. W. (sic) on 4-8-1980 at 12 O'Clock. On the dead body of the deceased five incised wounds, two punctured wounds and seven fire arm wounds were found. From the place of occurrence blood stained earth was taken into possession. Two pellets, two pairs of shoes, one cycle of accused Kailash and one cycle of the deceased were also found and taken into possession.
3. The accused respondents denied their involvement in the murder of Raj Narain and alleged to have been falsely implicated due to enmity. They also filed some documents, but no oral evidence was adduced by them.
4. We have heard Sri R. S. Maurya, learned A. G. A. appearing for the State and Sri S. L. Yadav, learned counsel for the accused respondents and have carefully perused the evidence on record.
5. The place of occurrence has not been seriously disputed and it is also established by the recovery of blood stained earth and the recovery of dead body from that very place. The prosecution examined P. W. 1 Rajdev Yadav, P. W. 2 Ghurmari and P. W. 3 Ram Chandra as eye witnesses besides relying on formal evidence of the doctor and relating to investigation. The trial Court has held that the presence of the three eye witnesses at the time of the occurrence was doubtful and they are partisan and interested witnesses. On the above finding, the accused respondents have been acquitted.
6. It has come in evidence that informant Rajdev P. W. 1 and deceased Raj Narain are great grand sons of one Gajadhar. Bhola was the brother of Gajadhar, who was is-sueless. Bhola adopted Rajanu, one of the sons of Gajadhar, Rajanu was married to one Bhagwantia. Rajanu died issueless. His wife Bhagwantia executed a gift deed of her entire property in favour of the informant Rajdev and Raj Narain deceased. Ranahu's brother is Bajanu, whose son was Ram Roop. Accused Rajendra is the son of Ram Roop and his brother is Sobh Nath. A civil suit was filed by Ram Roop in respect of the property gifted to the informant and his brother. About twenty years ago Ram Roop was murdered and Raj Narain was accused in that case. Raj Narain was acquitted by the High Court in the appeal. Since property of Bhagwantia was given to the informant Rajdev and Raj Narain and due to the murder of Ram Roop, enmity existed in the family of Rajendra accused and the family of the deceased. The accused persons also reside in village Salempur Baghai. The informant Rajdev looked after the cultivation while deceased Raj Narain was looking after the litigation. In 1978 accused Rajendra alongwith his brother Sobh Nath attempted to commit murder of Raj Narain and a case under Section 307 I. P. C. and 25 Arms Act was pending in the Court. It has come in evidence that accused Rajendra Yadav had formed a gang along with other four accused persons. The above fact shows that enmity existed in between the accused persons and the informant and his deceased brother.
7. Rajdev Yadav P. W. 1 is the brother of the deceased. Since he was also recipient of the property of Bhagwantia alongwith his deceased brother, his relation with accused Rajendra were not cordial. It has come in evidence that after the attempted murder of Raj Narain, proceeding under Section 107 CrPC was initiated by the police in which he, deceased Raj Narain and his father Sakraj along with Nathai were on one side while accused Rajendra and others were on the other side. The above fact shows that accused Rajendra was inimically disposed towards the informant also. According to the Investigation Officer the place of occurrence is at a lonely spot. The witness has stated that he saw the accused persons at a distance of about 12 lathas from him. According to him, the accused persons advanced towards him and his brother and he also advanced towards them. According to the witness, he saw the entire occurrence from a distance of 7 or 8 lathas when the accused persons were assaulting the deceased. It does not sound natural that after seeing their enemies the informant and the deceased would have continued to go ahead, particularly when all the five accused persons were armed with deadly weapons. It also sounds improbable that accused persons would have allowed the informant to have seen the occurrence and they made no attempt to assault him also. The informant has stated that he was raising alarm from a distance of 7 or 8 lathas where he was standing. The alarm which was being raised by the informant, due to which witnesses are alleged to have been attracted, was certainly an act which could not be palatable to the accused. Since the place of occurrence was lonely, the accused persons would not have spared the informant to be a witness of their misdeeds. According to the informant Rajdev, he had gone to Sadat Bazar for purchasing fertilizer. He has admitted that there is a shop of fertilizer which is at a distance of two Kilometers from his village. Moreover, in the F. I. R. it has not been mentioned that he had gone to Sadat Bazar for purchasing fertilizer. He stated that he had purchased one bag of fertilizer but he was not coming back with the same and has stated to have left the same in the shop itself. He stated that fertilizer was purchased by him from the shop of Banarasi and he procured no receipt for the same.
8. P. W. 2 Ghurmari was a witness of the attempted murder of the deceased which took place on 4-7-1978. According to Ghurmarl his chak was at a distance of 150 lathas from the place of occurrence. The trial Court on analysing the evidence of the witness has found that the field of the witnesses was at a distance of one mile from the place of occurrence. According to the informant the entire occurrence took place in about three or four minutes. At the time of occurrence paddy saplings were being planted and there was water in adjoining fields on either side of the road. The witness could not tell how many fields existed in between his chak and the place of occurrence. The Investigating Officer Surya Bali P. W. 5 has shown that the fields near the place of occurrence were inundated with water. The claim of the witness that he heard the alarm of the informant is not possible when his field was at a distance of one mile from the place of occurrence and while coming to the place of occurrence his clothes did not get wet. Besides that, water in the field would have hampered his rush to the place of occurrence.
9. So far as P. W. 3 Ram Chandra is concerned, he claims to be coming from Sadat Bazar where he had gone to purchase exercise books for his children. After seeing the accused persons, the witnesses had proceeded five or six lathas ahead of them towards north. In the site plan it has not been shown that he was towards north of the place of occurrence. This witness does not appear to be an independent witness. Ex. Kha 10 shows that his father Ram Karan was co-accused with the deceased Raj Narain, Rajdev P. W.1 and their father Sakraj. Ex. Kha 11 shows that the deceased Raj Narain was his witness in a case instituted by one Laujari in between whom and his mother-in-law a litigation regarding property was going on. The trial Court has. mentioned other cases, which show that P. W. 3 Ram Chandra is a partisan witness. The witness showed ignorance that there are two shops in village Salempur Baghai itself which sell exercise books. According to the informant the report was prepared by him on the paper which was procured from the hamlet of village Ahiayee. If P. W. 3 Ram Chandra had new exercise books with him, there was no reason why written report was not prepared on the paper available in the exercise book itself and why the paper was sent for from village Ahiayee. It has come in evidence that from Sadat Bazar there is a shorter route to go to village Salempur Baghai which was not availed of by the witness.
10. In the F. I. R. Chandra Dev and Ram Murat are also shown as witnesses, who appear to be independent witnesses but have not been examined by the prosecution for reasons best known to it.
11. Injury No. 8 of the deceased Raj Narain was firearm wound of entry on left side chest measuring 2 cm x 2 cm oval in shape 2 cm below left nipple margin black, inverted, direction backward & to the left forearm. According to the doctor injury No. 8 could have been caused when assailant and deceased were either in standing position or in lying position. According to the prosecution case, the above injury was caused from close range. However, no burning or scorching was present, which belies the prosecution case about the firing from close range. Injury No. 10 of the deceased was firearm injury of entry over the side of chest measuring 2 cm x 2 cm, oval 3 cm from left nipple, margin inverted. According to the doctor, this injury could have been caused when part of the body was parallel to the gun and when assailant and the victim were facing each other. It is improbable that after sustaining Gandasa injury and fire injury the deceased would have been in a position to stand up. Bladder of the deceased was empty. The statement Rajdev P. W. 1 shows that the deceased did not urinate before the occurrence. Dr. S. K. Srivastava has accepted this suggestion that the injuries of the deceased could have been caused on 2-8-1980 at about 6 or 8 P. M. The above facts show that medical evidence is in conflict with ocular testimony.
12. According to the prosecution case the informant prepared written report after half an hour within ten minutes. The distance of the police station from the place of occurrence is eight miles. The informant was made to write the written report, which is Ex. Kha 1, which he could scribe in twenty minutes. The original written report contains 400 words while the model written report contains 240 words. The last two lines show that written report was not prepared on the spot. The trial Court after analysing the G. D. entries came to the conclusion that some space was left for entering this case in G. D. and also found that copy of the chik F. I. R. would have been prepared after 7.15 P.M. The trial Court also found that copy of the chik F. I. R. was sent in the S. P. Office Ghazipur on 4-8-1980. If the chik F. I. R. was prepared on 2-8-1980, the same should have been sent on 3-8-1980 itself. The trial Court also found after scrutinizing the evidence that recovery of a pair of shoes and cycle of the accused from the place of occurrence by itself does not connect them with the crime in question.
13. In view of the aforesaid discussion, we see no reason for reversing the finding of acquittal recorded by the trial Court. The finding of the trial Court is based on correct appraisal of the evidence which cannot be faulted with.
14. The appeals have got no force and are liable to be dismissed.
15. The appeals are accordingly dismissed.
16. Judgment be certified.