Allahabad High Court
State Of U.P. vs Dharmpal And Others on 3 March, 2014
Author: Ravindra Singh
Bench: Ravindra Singh, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- GOVERNMENT APPEAL No. - 7406 of 2006 Appellant :- State Of U.P. Respondent :- Dharmpal And Others Counsel for Appellant :- Govt. Advocate Hon'ble Ravindra Singh,J.
Hon'ble Shashi Kant,J.
Heard learned A.G.A. and perused the lower court's record.
This application for granting leave to appeal has been filed against the judgment and order dated 31.7.2006 passed by learned Additional Sessions Judge, Anoopshahar, District Bulandshahr, in S.T. No. 353/2002, whereby the accused respondents have been acquitted for the offence punishable under sections 302/34 I.P.C.
Having heard learned A.G.A. for the State of U.P. and perusing the lower court's record, it reveals that the F.I.R. of this case has been lodged by Smt. Sanjawati P.W.1 on 12.11.2001 at 1:00 p.m. in respect of the incident allegedly occurred on 6.11.2001 at about 7:00 p.m. alleging therein that the accused respondents Sanjay, Bablu, Dharmpal have demanded their country made pistol from the deceased Munesh Kumar. On telling that it was lost, they took him with them in his house. All three have taken wine there. The accused respondent Dharmpal was also present there. They have again demanded country made pistol from him and after beating him badly, closed him in room and threatened to cut him by axe and darati. When the complainant tried to intervene, she was also abused by the accused respondents. On it she went her village for seeking the villagers favour. In the meantime, deceased Munesh opened the kundi (latch), ran in burning condition from there and jumped in the pond. The deceased was admitted to Aligarh Medical College, during treatment he was died on 8.11.2001 at about 05:00 p.m. In support of its case, prosecution has examined P.W.1 Sanjawati, P.W.2 Vimlesh, P.W.3 Amar Khan @ Amarwati and P.W.4 Smt. Puspa as witnesses of facts. Admittedly, P.W.1 Sanjawati has not seen any incident or any overt act with deceased. She is only the last seen witness of the deceased with the accused respondents Sanjay and Bablu. Other witnesses of fact P.W.2, P.W.3 and P.W.4 examined by the prosecution have not supported the prosecution case and they have been declared hostile.
The deceased was 90 % burnt. The other evidence against the accused respondents is dying declaration of the deceased recorded by P.W.10 S.D.M. C.P. Singh in which the deceased had told that there was enmity with the accused respondents in connection with payment of his Rs. 500/- from the accused respondents which were due as arrears of his labour works. On the day of incident, the accused respondents have beaten him in the closed room and after that burnt him by pouring the kerosene oil. The accused respondent Bablu caught hold him, Sanjay poured kerosene oil and accused respondent Dharmpal lit him from match-stick.
There was a fitness certificate by C.M.O. on dying declaration prior to recording the dying declaration and after recording of it. Doctor who has given fitness certificate for recording the dying declaration of the deceased was not examined before the court. Bed-head ticket of the deceased was also not produced in the court.
The learned trial court found that P.W.9 Dr. V.K. Singh has admitted in his statement that there was a cotton (Soot) in the trekia of the deceased. He was in the condition of 90% burnt and in such condition, there was also possibility that the deceased may not be in condition to speak one or two days earlier.
In such circumstances, the trial court has acquitted the accused respondents by holding that prosecution has failed to establish the charge against the accused respondents beyond the shadow of doubt.
We have also perused the statement of the witnesses and lower court's record which reveals that the trial court has considered all the statements of the witnesses and documents available on record, there is no mis-reading of the evidence.
The trial court has taken the view of acquittal which is possible view, it does not require any interference, therefore, the prayer the granting leave to appeal is refused. Accordingly, this application for granting the leave to appeal is dismissed.
Order Date :- 3.3.2014/Monika Court No. - 42 On memo of appeal Case :- GOVERNMENT APPEAL No. - 7406 of 2006 Appellant :- State Of U.P. Respondent :- Dharmpal And Others Counsel for Appellant :- Govt. Advocate Hon'ble Ravindra Singh,J.
Hon'ble Shashi Kant,J.
Heard learned A.G.A. and perused the lower court's record.
The application for the granting leave to appeal has been refused today, consequently this appeal is also dismissed.
Let let lower court's record be sent back to the concerned court forthwith.
Order Date :- 3.3.2014 Monika