Allahabad High Court
State Of Up vs Om Prakash Kushwaha on 11 November, 2020
Author: Subhash Chand
Bench: Subhash Chand
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 38 Case :- GOVERNMENT APPEAL No. - 233 of 2020 Appellant :- State of U.P. Respondent :- Om Prakash Kushwaha Counsel for Appellant :- G.A. Hon'ble Arvind Kumar Mishra-I,J.
Hon'ble Subhash Chand,J.
Heard learned A.G.A. for the State-appellant and perused the record.
The instant Government Appeal has been preferred against the judgment and order dated 30.07.2020 passed by Additional Sessions Judge (Rape & POCSO Act), Sonbhadra in Sessions Trial No. 88 of 2017 (State Vs. Om Prakash Kushwaha), arising out of Case Crime No. 96 of 2017, under Section 304 IPC, P.S. Duddhi, District Sonbhadra, whereby the accused-respondent Om Pakash Kushwaha was tried for the offence under Section 304 IPC for killing his own mother and he was acquitted by the Court after full trial.
The prosecution case, in brief, is that a written report was given to the police on 21.06.2017 that the informant's elder brother Om Prakash @ Mankoo son of Lalji, who was missing from his house for about three months returned home on 20.06.2017, on account of some dispute/altercation with his mother Maulwas, he assaulted her severely with bamboo/danda. On hearing the noise, the informant arrived on the spot where his mother was groaning. She was taken to the hospital, where she succumbed to her injuries.
On terrific situation being created, the informant's sister-in-law (Bhabhi) and 'niece' rushed to the house of their neighbour, for hiding themselves. This information was registered as Case Crime No. 96 of 2017, under Section 304 IPC at the aforesaid police station on 21.06.2017. The investigation ensued and after preparation of the inquest report, the dead body was sent for postmortem examination where the autopsy was conducted at 3.00 pm on 21.06.2017 by Dr. Ajeet Singh, who was examined as P.W.9. He proved the postmortem examination report and the cause of death was stated to be ante mortem injuries sustained by the deceased. As many as seven injuries were noted in the postmortem report, detail of which has duly been mentioned in the judgment of trial Court, therefore, there is no need to mention the same for the purpose of convenience.
Further the investigation ensued and the Investigating Officer took note of all materials, completed the investigation and filed charge-sheet Ext. Ka-7 against the accused-respondent, whereupon the case was committed to the Court of Sessions for trial.
In the trial, accused-respondent was charged for offence under Section 304 IPC. Charge was read over and explained to him, to which he pleaded not guilty and claimed to be tried.
The prosecution in support of its case has examined as many as 10 witnesses. P.W.1 Jai Prakash, P.W.2 Ram Dayal, P.W.3 Jag Narayan, P.W.4 Ram Sajivan, P.W.5 Lalji, P.W.6 Chaturgun, P.W.7 Baban Dayal, P.W.8 Devi Dayal, P.W.9 Dr. Ajeet Singh and P.W.10 Sub Inspector Venketeshwar Tiwari. Apart from above, the prosecution has produced the following documents. The written report Ext. Ka-1, inquest report Ext. Ka-2, postmortem examination report Ext. Ka-3, check FIR Ext. Ka-4, G.D. entries whereby the case was registered under the aforesaid section of IPC at the aforesaid police station on the aforesaid date as Ext. Ka-5, challan dead body Ext. Ka-6, charge-sheet Ext. Ka-7 and site plan Ext. Ka-8 etc., besides proving relevant papers, which have been elaborately dealt with in the impugned judgment by the trial Court.
No more evidence was adduced on behalf of the prosecution. Therefore, evidence for the prosecution was closed and the statement of the accused was recorded under Section 313 of IPC, wherein he claimed to have falsely been implicated for no worthy reason and it has been claimed, interalia, that informant's side was trying to grab the land of his share, therefore, false case has been thrusted upon him. Thereafter, evidence for the defence was also closed and the case was posted for arguments.
The trial Court after considering the entire case on merits has recorded its satisfaction and consequently acquitted the accused-appellant of the charge levelled against him. Hence this appeal.
The contention is that the evidence available on record was not properly appreciated and the informant's testimony was sidelined for no worthy reasons, the entire appraisal of evidence on its face value is perverse, erroneous and not sustainable in law. Under facts and circumstances, it is apparent that the prosecution witnesses have proved their case beyond all reasonable doubt, therefore, it was incumbent upon the trial Court to have recorded the conviction but the same was erroneously ignored by the trial Court.
We have considered arguments of learned A.G.A. at length and perused the record as brought before us. Obviously, upon perusal of evidence available on record, we find that none of the witnesses was present at the time of occurrence on the spot and the written report Ext. Ka-1 says that after the occurrence, people rushed to the spot and panic was created and therefore, it is evident that none of the witnesses, who could have seen the occurrence was present on the spot.
In so far as circumstances of the case are concerned, we, upon perusal of the facts and circumstances, find that the deceased was living with the accused under the same roof on the date of occurrence i.e. 20.06.2017, however, this specific fact was required to be especially proved by the prosecution. Unless that fact is established and proved, we are unable to understand as to how under circumstances the accused alone was the author of the crime. This being the case, the trial Judge has rightly recorded its satisfaction, whereby the accused-respondent has been acquitted of charge leveled against him.
In Kanhaiya Lal and others Vs. State of Rajasthan AIR 2013 SC 1940, Hon'ble Apex Court has observed that while dealing with an appeal against acquittal, the Court should keep in view the presumption of innocence in favour of the accused as the same gets fortified by his acquittal if the view taken by the trial Court is well grounded and based on material on record.
In view of the discussion made hereinabove, we see no infirmity latent or patent in the judgment of acquittal recorded by the trial Court. We are, accordingly, not inclined to interfere with the judgment and the order of acquittal recorded by the trial Judge in respect of the accused-respondent. The instant appeal is liable to be dismissed. Consequently, the to appeal is thus refused.
Accordingly, the instant appeal is dismissed.
Let a copy of this order be certified to the Court concerned.
Order Date :- 11.11.2020 Prajapati