SHEO PRASAD MISRA Vs. STATE OF U P

JUDGEMENT

(1.) ON the basis of an FIR lodged by Sheo Prasad Misra in police station Khukhundu, district Deoria at 6.45 P. M. on 3-4-1983 against Shri Kant, Ram Suresh and Sidhnath, son of Harihar, a charge-sheet was submitted and the case started under sections 379, 352 and 411 IPC. Mr. R. N. Rai PCS (J) the then Judicial Magistrate oil Deoria tried the accused of that case, recorded the evidence and came to the conclusion that no case was made out and, therefore, directed their acquittal vide order dated 24-10-86. The number of the Criminal case was 1565 of 1986. Against this order of acquittal the present revision has been filed by the complainant.

(2.) THE First Information Report allegations were that on 3-4-83 at 3 in the morning the three accused opposite parties were cutting the Arhar crop belonging to the complainant and when he reached on the spot and protested, they made him to run away from the spot under threat of assault. THE complainant cried out and the witnesses Chandra Sbeikhar Tewari and Kishun who were easing themselves nearby came and intervened and saved the situation.

(3.) A perusal of the statement of PW 3 will show that he saw the occurrence from a considerable distance of about 10 to 20 Latthas. Undoubtedly even according to the first Informant it was dark since the occurrence took place at about 3 in the morning. In such a situation from that distance it could not be possible for any one to recognize the persons who were allegedly cutting the crop inside the field. It is in the evidence of PW 2 that Arhar crop was standing in the middle of plot no. 110. Naturally the testimony of PW 3 to the effect that he saw the accused persons cutting the crop is unbelievable. It may also be mentioned that during examination-in-chief he named Siddharath and Ram Suresh as the two persons who were cutting the crop. Name of Shri Kant has not been mentioned. This witness further says that he had reached that plot in order to ease and then he saw what was happening and the accused persons made him to run away from the spot. This is not the testimony of the first Informant. According to his version, this witness was already easing in the neighbourhood and on his cries he came on the spot Shri Kishun, however, does not say a single word about the presence of the first Informant on the spot at any time. The testimony of PW 3 Shri Kishun, therefore, is unreliable and cannot be made the basis for coming to any conclusion in favour of the first Informant. Moreover, he had no occasion to know that the crop had been sown and grown by the first Informant and his testimony to that effect is of no avail.