STATE OF UTTAR PRADESH Vs. DINESH KUMAR

JUDGEMENT

(1.) THIS Government Appeal alongwith an application under Section 378 (3) of the Code of Criminal Procedure for grant of leave to appeal has been filed on behalf of State of U.P. against the judgment and order dated 9.4.2004 passed by Addl. Sessions Judge/ F.T.C. No. 3, Etah in S.T. No. 356 of 1999 ; State of U.P. Vs. Dinesh Kumar and others arising out of case crime no. 54A of 1996, under Section 307/34 IPC., P.S. Naya Gaon, District- Etah, whereby the respondents Dinesh Kumar, Netrapal, Indrapal and Brajesh Kumar were acquitted for the charge under Section 307 read with Section 34 IPC. The incident took place on 28.7.1996 at 10 a.m. in Village- Bhadki, P.S. Naya Gaon, District- Etah. The FIR was lodged on the same day at 12.30 p.m. by the complainant- Shyam Singh.

(2.) THE prosecution case as contained in the FIR was that on 28.7.1996 at 10 a.m., there was a quarrel and maar-peet between Shaitan Singh and Bachan Singh. Thereafter, there was cross firing between both the accused. Veerpal and Bachan Singh fired causing injuries to Smt. Mahesh Kumari, Akhilesh Kumari and Ramka Devi. Subsequently, another written application was given by the complainant stating therein that on 28.7.1996 at 10 a.m., his niece- Akhilesh Kumari, sister in-law- Mahesh Kumari (P.W.-1) and Ramka Devi (P.W.-3)were sitting in front of their house. The accused Brajesh Kumar and Dinesh Kumar armed with their licenced guns, Indrapal armed with a licenced single barrel gun and Netrapal armed with a country made pistol fired causing injuries to the three ladies. Complainant was not present at the time of incident. When he returned home, the facts were disclosed to him by his niece- Satyabhama (P.W.-4). He started for the police station. On the way, near bus stand- Saraya, three injured, who were being taken to the hospital, met the complainant, who also went to the hospital and took them to Etah. Thereafter, the first informant came to know that somebody had lodged the FIR on his behalf against wrong accused. Three injured were medically examined. Investigation was commenced by S.I. Tilak Chandra (P.W.-7). The investigation was transferred to Sri Angad Ram Sharma (P.W.-8) and subsequently to S.I. Kailash Chandra Gautam (P.W.-9). After completion of investigation, charge-sheet was submitted against the accused- Dinesh Kumar, Netrapal and Indrapal (respondent nos. 1, 2 and 3). Respondent no. 4- Brajesh Kumar was summoned during trial under Section 319 Cr.P.C. Charge under Section 307 IPC read with Section 34 IPC was framed against all the respondents, who pleaded not guilty and claimed to be tried.

(3.) LEARNED trial court found that the prosecution case is doubtful on the basis of earlier FIR and acquitted the respondents. Hence this appeal. We have heard learned AGA for the State and perused the trial court records carefully. It was contended on behalf of the State that learned trial court has committed illegality in disbelieving the statements of injured witnesses on the ground of delay in FIR and on the basis of earlier report, which was not actually lodged by Shyam Singh (.P.W.-2). It was contended that trial court has given unnecessary importance to minor contradictions in the testimony of witnesses and judgment of acquittal passed by trial court is perverse and is liable to be set aside.