STATE OF U P Vs. DINESH

JUDGEMENT

(1.) Questioning correctness of the judgment of a Division Bench of the Allahabad High Court directing acquittal of the respondent, this appeal has been filed by the State of Uttar Pradesh. Learned IV Additional Sessions Judge, Lakhimpur, Kheri, had convicted the respondent for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short IPC) and sentenced him for life imprisonment in Sessions Trial No.469/92.

(2.) The prosecution version in a nutshell is as follows : Complainant Sita Saran (PW 3) filed a written report Ex. Ka-1 on 24.5.1991 at P.S. Kotwali, stating that he is a resident of Mohammadpur, PS. Kotwali, and his sister is married to Amritlal, Amkotwa (hereinafter referred to as the deceased) resident of village Amkotwa. Today on 24.5.1991 he was going with his brother-in-law (sisters husband) on a bicycle from village Saherua at Amkotwa after delivering milk to Amebarati Lal at village Saherua. He was accompanied by Ram Lakhan of Amkotwa and his nephew Rajesh. When they reached near Habibs field from village Saherua, two persons named Dinesh, the respondent and Vinod, belonging to village Amkotwa, and armed with country made pistol and knife came out of said field. They caught the complainants brother-in-law, Amrit Lal with his bicycle, took him into Habibs field saying they would take revenge by murdering him. Vinod and Dinesh fired from the country made pistols at his brother-in-law who got struck and fell down. Thereafter Dinesh assaulted him with a knife. When the complainant raised an alarm, Ramadhar, Prakash and others from village Baheiya came and challenged the assailants, who ran away towards Pachkotwa. On being pursued by the people, they threatened them. Thereafter the complainant and others gave up the chase. These persons murdered his brother-in-law because his brother-in-laws brother Radhey Shyam had brought a tractor which was needed by Vinod, but his brother-in-law would not allow Vinod to use it. It is for this reason that the murder was committed. The dead body was lying in the field. The incident took place at 10.30 a.m. On the basis of the above written report, F.I.R. was written at P.S. Kotwali on 24.5.1991 at 11.20 a.m. Thereafter the investigations in the case began. Sub-Inspector Vishwa Nath Pandey prepared the inquest Ex. Ka-2 at the site, photo of the dead body Ex. Ka-10 was taken, specimen of the seal Ex. Ka-11. Memo for recovery of the bicycle at the site, Ex. Ka-12, Memo Ex. Ka-13 for collecting ordinary and blood stained soil from the site. After completing investigations, charge sheet Ex. Ka-6 was filed against accused Vinod and Dinesh. Since the accused persons pleaded innocence, trial was held. During the pendency of the trial, accused Vinod died on 7.2.1994. Eight persons were examined to further the prosecution version. PWs. 1 to 4 were stated to be eyewitnesses to the occurrence. During trial Om Prakash (PW 1) and Ram Dhan (PW 2) resiled from their statements made during investigation and, therefore, prosecution with the permission of the court, cross-examined them. The trial Court found the evidence of Sita Saran and Rajesh Kumar (PWs. 3 and 4) to be cogent and directed conviction as noted above. The respondent filed an appeal questioning the conviction as recorded. The High Court noticed discrepancies in the evidence of PWs. 3 and 4. PW 3 was related to the deceased while PW4 was his son who was aged about 10 years at the time of occurrence. The High Court noticed that motive is not of much importance when credible evidence is available. If found that the motive highlighted was too feeble to be of any consequence. Apart from that the High Court found presence of PW3 to be highly improbable. It noticed that there was no sign of dragging at the place of occurrence as was stated by PWs. 3 and 4 and also there was no injury which could be co-related with dragging. All the injuries noticed were either incised injuries or on account of firearm. The High Court found that both PWs. 3 and 4 stated that respondent Dinesh and co-accused Vinod, who died, during trial fired one shot each from the guns held by them. The doctor who conducted post-mortem found that there was only one fire arm injury. To make up discrepancy PWs. 3 and 4 stated that certain empty cartridges and two live cartridges were found at the place of occurrence by the Investigating Officer. But the Investigating Officer stated that he did not find either any empty cartridge or live cartridge at the scene of occurrence. It is to be further noted that both PWs 3 and 4 stated that while the deceased was being restrained by one hand each by the two accused persons, they shot him from the other hand. In other words, their version was that the accused persons fired at the deceased from a very short distance. The doctors evidence clearly ruled out this aspect. He noticed that only skin deep injury was there and not any penetrating wound. PW.3 had stated that all the knife injuries were inflicted when the deceased was in a lying posture and according to Rajesh Kumar (PW.4) even at that time both the accused persons were catching hands of the deceased. The doctor found that all the injuries found on the deceased were incised wounds and not a single puncture wound was found on the deceased. The doctor further stated that there was no possibility of the incised injuries Nos. 1 to 13 being caused to the deceased while he was lying on the ground. To add to the vulnerability, the High Court pointed out that according to SI PW.7 Vishwanath Pandey inquest was completed around noon time and the dead body was sent to the Mortuary at 1.45 p.m. on 24.5.1991. According to PW.3 Sita Saran, she had accompanied the dead body to the mortuary. The post-mortem examination was, however, conducted at about 3.00 p.m. on 25.5.1991. From the perusal of the records the High Court noticed that the papers were received at the mortuary on 25.5.1991 around 12.30 p.m. The High Court found it improbable that only the dead body was purportedly sent but no documents were sent. The High Court further found that there were several circumstances which belied prosecution claim that the FIR was lodged on 24.5.1991.

(3.) Learned counsel for the appellant submitted that the discrepancies highlighted by the High Court are not very material to discard the prosecution version and the trial courts judgment should have been upheld.