KAILASH NATH Vs. STATE OF U P

JUDGEMENT

(1.) The prosecution story is as under:

(2.) Mr. K.V. Vishwanathan, the learned senior counsel for the appellant has raised three basic arguments during the course of hearing. He has first pointed out that in the light of the fact that Chhoti P.W. 1 had not seen the shot being fired by Balwant as she had been asleep at that time and had woken up in alarm and seen that Deep Singh had already been injured and as only one injury had been suffered by the deceased as per the prosecution, the story of a second shot by the appellant was not believable. Elaborating this argument, Mr. Vishwanathan has pointed out that the fact whether one shot or two shots had been fired had to be determined from the pellet holes in the clothes that the deceased and the injured had been wearing but as the clothes had not been taken into possession, a presumption should be drawn against the prosecution and it must be held that one and not two shots had been fired which would clear the appellant. It has also been pleaded that there appeared to be no apparent motive for the incident and the suggestion with regard to the animosity on account of the various land transactions etc. which had been spelt out by the prosecution, had been found by the High Court to be unacceptable and the High Court had accepted the story given in Ex Ka. 5 to K. 7. He has also pointed out that as the complaints allegedly made by Deep Singh long before his death that he apprehended danger at the hands of the appellant and his associates had seen the light of the day for the first time in court, their veracity was doubtful. It has finally been pleaded by Mr. Vishwanathan that animosity between the parties was admitted and in the light of the observations of the High Court, the appellant too was entitled to the benefit of doubt which had been given to the other accused.

(3.) Mr. Ratnakar Dash, the learned senior counsel representing the State of Uttar Pradesh has, however, controverted the arguments raised by Mr. Vishwanathan. He has pointed out that though the motive had been proved beyond doubt but in the face of the direct evidence in the person of Chhoti, P.W. 1 who was also an injured eye witness, the absence of motive would have no effect on the prosecution story. He has pleaded in elaboration that the place of incident, the time of the incident and the weapons used in the crime have not been disputed by the defence and in the light of the fact that the FIR had been recorded by 7:15 a.m. at the Police Station which was situated 12 miles away from the place of the incident, supported the prosecution story in its entirety. He has also pointed out that as per the doctor's evidence the injuries had been caused with a shotgun.