- (1.) HEARD learned A.G.A. and perused the Trial Court's judgement and record. This application for leave to appeal has been filed against the judgement of the Additional Sessions Judge, (Fast Track Court No. 2), Ghazipur, dated 15.9.2004 acquitting the accused -respondents under sections 460, 411 IPC.
(2.) A report was lodged on 25.9.1991 at 10 a.m., by Shivnath Dushadh, P.W. 1, Chaukidar of village Mahuari that he had learnt from one Rampat Chamar (who has not been produced) that in his "halka" Pheku Chamar was lying murdered at his pumping set. When he heard this information, he went there and saw that the crowd had gathered there and he found that the arms of the deceased Pheku Chamar were tied up with a rope and his mouth was tied up with an angochha and he was lying dead on the spot. Thieves had decamped with the motor of the pumping set. Subsequently, an application was given by Bachchoo Ram, P.W. 10 (Ext. Ka -10) at the same police station that when he was sleeping at the tube well on the night of 24/25.9.1991, at about mid night, thieves started cutting the wall of the tube well. On hearing the noise, he and the deceased woke up. His uncle the deceased Pheku opened the door. The accused entered and started opening the engine, at the resistance by Pheku, the accused tied up his uncle, murdered him and ran away with the engine. The Trial Judge has disbelieved the story given by P.W. 10 Bachchoo Ram on the ground that the report was lodged by Chaukidar P.W. 1 Shivnath and not by this witness. Also police made a search in the house of these two accused respondents Lachchan and Chhangoor, who were named by this witness P.W. 10 in his application. Nothing was recovered from them. It is admitted by witness P.W. 10 and P.W. 7 that there was enmity between the deceased and the accused -respondent Lachchhan and Chhangoor, because they were both having pumping sets and there was competition in the business of selling of water. The recovery has also been made from the accused -respondent Nirmal Bind after three months. Moreover, complicity of Nirmal Bind was not disclosed by the accused Chhangoor and Lachchhan, but by one Phagoo Chauhan, who was arrested later on in a case under section 25 of the Arms Act. One P.W. 2 Munna, who is said to be seen accused taking the engine, has turned hostile. The witness Virendra Ram, P.W. 3, P.W. 4 Shukkhoo, P.W. 7 Ram Adhar and P.W. 8 Shirati are admittedly not eyewitnesses of this incident. There was more reason for false implication of the accused -respondents for having committed the crime. The accused Nirmal Bind has been acquitted, because the public witnesses of the recovery of the motor have not been produced. Moreover, no evidence has been adduced to prove that the Nirmal knew that the motor, was stolen property.
(3.) LEARNED A.G.A., on the other hand, submitted that the evidence of Bachchoo Ram, who is an eye witness should be relied on and the evidence of Shirati also, who is a "sarhu" of P.W. 7, who also claims to have seen two named accused and two others taking away the engine should be relied on.;