STATE OF U.P. Vs. NARESH AND OTHERS

JUDGEMENT

(1.) This is an appeal which has been filed by the State of U P. against the judgment and order of Sri Ram Das Special Judge. Dacoity affected Area, Etah dated 20-5-87 acquitting the respondents Naresh, Suresh, Ramesh, Raj Bahadur Jagdish and Bahori Lal under Sections 396, 148, 302 read with Sections 149 and 452 of the Indian Penal Code.

(2.) The fact that there was a dacoity at the house of the complainant in the night between Sept. 13 and Sept. 14, 1982 wherein Khamani Ram had been done to death and the articles belonging to the complainant had been looted had nut been assailed. The allegations or the complainant are that the respondents were the members of the gang which had come to murder him and to loot his articles but mistaking Khamani Ram for him, shot him dead and made good their escape with cash amounting to Rs. 650.00, silver ornaments, gold coins and certain other articles. The report of the incident which took place in the midnight had been lodged on the following day at 8.30 AM.

(3.) The prosecution had examined Chhotey Lal complainant P. W. 1, Yashpal P. W. 3 and Dhan Sahai a witness not named in the first information report as P.W. 2 to substantiate the prosecution story. The learned Special Judge found himself unable to place reliance upon the testimony of the above witnesses. He has observed in his judgment that Chhotey Lal P.W. 1 and Yashpal P. W. 3 were both on inimical terms with the accused persons as Chhotey Lal and his son had been convicted under Sec. 307 I. P. c. on a report by the accused of this case. He has also referred to this admitted fact that there was dispute between the complainant and the accused with regard to land. So far as the witness Yashpal Singh is concerned, he found him to be ill disposed toward the respondents in view of litigation between him and the accused relating to 'personals' as borne out from copy of a document on record. He found it to be highly improbable that the respondents could mistake the complainant for the deceased and murder him when they had no grievance against him. Besides it appeared to him to be improbable that the respondents without concealing their identity would have gone to loot and murder the complainant on residing in the same village. He has also discussed as to how the complainant had improved upon the initial version during the course of the trial and explained the numerous infirmities by pointing out that officials of the police station had been colluding with the respondents.