Durbal vs State Of U.P

4. It is further the case of the prosecution that on 24th December, 1979 at about 10.30 p.m. in the night while Kaldhari (PW 1) was sleeping in his house with its door bolted from inside, his father Abhi Raj (deceased) and nephew Bal Kishun (deceased) were sleeping on a takhat in the verandah, all of a sudden, Abhi Raj and Bal Kishun (both deceased) raised alarm and in the meanwhile, someone started thumping on the door of the room where Kaldhari (PW 1) was sleeping. As he was about to open the door, he could hear Awadhoo (A 1) commanding him to open the door. Kaldhari (PW 1) identified him from his 4 voice. Kaldhari then started raising alarm from inside the house. This attracted Sonai (PW 3), Sheo Kumar (PW 2) and Lal Mani (not examined) from the neighbourhood who reached the place of occurrence flashing torch lights. On seeing the witnesses, Kaldhari gathered courage and opened the door of his room and came into verandah. He saw that all the four accused accompanied by two or three unknown associates were assaulting his father Abhi Raj and nephew Bal Kishun with knives and bhalas. On finding that the villagers were gathering at the scene of offence, the miscreants retreated and before turning away from the place of occurrence, they also opened fire. The police station, as per chik FIR is about 20 kilometers away from the place of occurrence. Kaldhari (PW 1) could not go to the police station in that night. In the early morning he got the information registered. At that time, Ram Awadh Chaudhary (PW 8), the Investigating Officer, was present at the police station who having registered the First Information Report, proceeded to the scene of offence 5 and commenced the investigation. He recorded statements of the witnesses and collected lantern and torches which were the alleged source of light in which the witnesses claimed to have seen the occurrence. He also collected blood stained earth and other material including an empty cartridge shell and some pellets of the shot which was fired by the miscreants on the spot. The dead bodies were then sent for autopsy after holding inquest and due formalities.

7. The prosecution in support of its case examined Kaldhari (Pw 1), Sheo Kumar (PW 2) and Sonai (PW 3) apart from Dr. P.N. Awasthy (PW 5) and Ram Avadh Chaudhary (PW

8. The trial Court by its well reasoned judgment acquitted all the accused of the charges. The trial Court found that there was no motive whatsoever for the accused to have attacked the deceased on that fateful night. There was no altercation whatsoever at the pond over fishery rights two days prior to the incident as alleged by the prosecution. The trial Court disbelieved Magan (PW 4) who allegedly witnessed the altercation. He was examined by the Investigating Officer after more than two months of the incident. The trial Court also found that PW 4 (Magan) is closely related to Kaldhari (PW 1). Ramdhani, the alleged partner of Kaldhari (PW 1) was not examined. The trial Court also found the evidence of Kaldhari (PW 1) to be 8 highly doubtful. The very fact that Kaldhari (PW 1) was not attacked by the accused is a strong circumstance, according to the trial Court, to doubt the prosecution's case. The trial Court noticed the contradictions in the statement of Kaldhari and accordingly disbelieved his evidence. The trial Court also noticed that Sonai (PW 3) stated that he came out of the house on hearing alarm raised by Abhi Raj (deceased) and found only Sheo Kumar (PW 2) and one Lal Mani (not examined). According to him, no other person was present at the scene of offence. The trial Court, in the circumstances, came to the conclusion that it was extremely doubtful as to the presence of Kaldhari (PW 1) at the scene of offence. The trial Court also doubted the presence of Sheo Kumar (PW

16. These all are the factors which give rise to doubt in our minds as to the presence of PWs 2 and 3 at the scene of 15 offence. The trial Court rightly entertained the doubt and accordingly gave the benefit of doubt to the accused. It is a plausible view taken by the trial Court which could not be held to be a perverse one. Such a view has been taken by the trial Court after appreciation of the evidence. The High Court, in our considered opinion, ought not to have interfered with the judgment of the trial Court merely because there is a possibility of taking a different view other than the one taken by the trial Court. The appellant, in our considered opinion, is entitled to the benefit of doubt. It would be unsafe to convict the accused on the evidence which is not free from doubts.

17.For the aforesaid reasons, the impugned judgment of the High Court is set aside and judgment of the trial Court shall stand restored. The appellant is thus acquitted of all the charges and his conviction and sentence is accordingly set aside. He may be set free forthwith unless otherwise required in any other case.

18.The appeal is allowed accordingly.