State Of U.P vs Naresh And Ors

2. Facts and circumstances giving rise to this appeal are that on 16.10.1979, in the morning Naresh, respondent no.1 herein, started digging the (Chak Road) to create a passage from the field of the informant Subedar (PW.1). He was stopped by Balak Ram (PW.5).

Naresh, respondent no.1, not only abused Balak Ram (PW.5), but also assaulted him and threatened him that he would face dire consequences. With regard to this, Balak Ram (PW.5) lodged the complaint of the incident at about 9.30 a.m. in Police Station, Kampil, District Farukhabad. Balak Ram (PW.5) was accompanied to the police station by the informant Subedar (PW.1) and their uncle Sri Ram (deceased). Balak Ram (PW.5) and Sri Ram (deceased) had a rifle and a gun with them.

3. After lodging the complaint in the police station, Kampil, one of them, went to the market to make some purchases and, subsequently, they returned to their village in the evening. While coming back to their village Karanpur, from Kampil, at about 5 p.m. 2 on Kampil - Aliganj Road, as soon as they approached the fields of Gajraj and Ganga Ram; they found the four accused (respondents herein) emerging out from the bushes armed with gun and country made pistols. They hurled abuse at them and also opened fire. Sri Ram and Balak Ram (PW.5) received gun shot injuries. Sri Ram died on the spot, however, Subedar (PW.1) escaped unhurt. After hearing a distress cry, some persons working in the nearby fields rushed towards the place of occurrence. The accused ran away from the place of occurrence snatching the gun, rifle and ammunitions from the victims.

6. After completing the investigation, a chargesheet was filed against all the four accused. They denied their involvement in the crime and claimed trial. In order to establish its case before the trial Court, the prosecution examined 11 witnesses including Subedar (PW.1), informant and Balak Ram (PW.5), injured. After concluding 4 the trial, the trial Court convicted and sentenced all the four accused as mentioned hereinabove.

10. On the contrary, Shri Manoj Prasad, learned counsel appearing for the respondents, has vehemently opposed the appeal contending that the incident occurred three decades ago. The respondents have been acquitted by the High Court after considering all the material on record. In respect of the incident that occurred on the morning of 16.10.1979, Balak Ram (PW.5) lodged the complaint on the basis of which NCR was recorded, wherein only Naresh, accused had been named. The not naming of the other accused is a good ground for rejecting the prosecution case in its entirety. The finding of fact recorded by the High Court cannot be said to be perverse warranting interference by this Court. No recovery of arms and ammunitions had been made from the respondents/accused. The rifle and gun which were allegedly snatched from the victims had been recovered after a long time from the dacoits killed in an encounter in District Etah. The High Court has rightly disbelieved Balak Ram (PW.5) on the basis of material contradictions in his deposition. This Court has laid down definite parameters for interference with the order of acquittal and this case does not fall within those parameters. Thus, there is no cogent reason for this Court to interfere with the same.

Prosecution suppressed the true genesis of the incident and enroped 7 the respondents due to pre-existing enmity. The prosecution failed to prove its case beyond reasonable doubt. Thus, no interference is warranted, the appeal lacks merit and is liable to be dismissed.

Thus, we are of the considered opinion that the findings recorded by the High Court are perverse and cannot be sustained in the eyes of law.

29. Thus, the appeal is, accordingly, allowed. Judgment and order dated 19.5.2004 passed by the High Court is hereby set aside and the judgment and order of the trial court dated 9.12.1980 passed in Sessions Trial No. 181 and 182 of 1980 convicting the respondents under Sections 302/34, 307/34 and 379/37 of IPC and the sentences so imposed, is restored. As the respondents have been acquitted by the High Court, the copy of the order be sent to the Chief Judicial Magistrate, Farukhabad, to take the respondents into custody and send them to jail to serve the unserved part of the sentence.