State Of U.P vs Nandu Vishwakarma & Ors

2. Before dealing with the rival contentions raised on behalf of the parties and in order to appreciate the said contentions it would be necessary to state a few facts leading to the registration of the aforesaid criminal case.

3. Dangar Yadav, who is the elder brother of informant PW-1 (Prithivi Pal), and Gujrati Devi (PW-2), wife of the informant are residents of village Samraha, Police Station Karchana. The respondents who are accused in the present case are residents of another village namely village Dubawal, Police Station Sarai Inayat. There is no dispute with regard to the fact that both the informant side as also the accused are involved in litigation pertaining to some plots of land in Kachhar village of Leelapur which is a separate village than the village in which the informant party reside and also from the village where the accused party reside.

4. There was an incident of mutual assault (marpit) on 26th February, 1979 at about 12.00 O' clock. It is alleged in the first information report (for short `the FIR') that the informant Prithivi Pal (PW-1) and his wife Gujrati Devi (PW-2) were engaged in harvesting their crops in village Kachhar. Around noon, the three alleged accused persons namely Nandu Vishwakarma, Kalu and Lalloo armed with Gandasa, lathi and spear respectively reached the scene of occurrence and started assaulting Dangar Yadav. Dangar Yadav raised an alarm whereupon the two witnesses namely Prithivi Pal (PW-1) and his wife, Gujrati Devi (PW-2), who were present in the vicinity tried to save him but in the process they were also assaulted by the aforesaid accused persons.

5. Consequent to the said assault caused by the aforesaid three accused persons, Dangar Yadav died at the spot and Gujrati Devi (PW-2) also fell down in the field. An oral report of the incident was lodged at about 5.30 p.m. by Prithivi Pal (PW-1) at Police Station Sarai Inayat. On the basis of the aforesaid report, an FIR being Crime No. 50 of 1979 was recorded and the investigation was started by the police. After completion of the investigation the police submitted the charge-sheet against the respondents herein on the basis of which charges were framed and they were tried. The respondents pleaded not guilty and stated that they were falsely implicated in the said case due to the litigation which is pending between the parties.

6. In the trial, the prosecution examined a number of witnesses. After completion of the trial, the learned trial court found all the respondents guilty of the charges against them and convicted all three of them for the offence under Section 302 read with Section 34 IPC and also under Section 367 read with Section 34 IPC and they were sentenced to undergo life imprisonment for the offence under Section 302/34 IPC and for rigorous imprisonment for five years under Section 367/34 IPC which was to run concurrently.

19.In the present case, it is also not clearly established from the records as to who was in possession of the property in question where the occurrence 10 had taken place. In view of the aforesaid situation and the two possible views taken by the courts below - one taken by the trial court and the other taken by the High Court - and the view taken by the High Court being a plausible view, we find no ground to interfere with the order of acquittal passed by the High Court.

20.Accordingly, this appeal has no merit and is, therefore, dismissed.