- (1.) ONKARESHWAR Bhatt, J. Accused respondents, Shesh Nath Pandey, Ram Suresh Pandey, Ganga Saran, Triloki, Beni Madho Dube and Hausila Shukla, were tried for the offences under Sections 148 and 302/149, IPC and were acquitted. The judgment and order was passed by III Additional Sessions Judge, Gorakhpur on 12-3-1981 in S. T. No. 85 of 1979.
(2.) SRI R. S. Maurya, learned AGA for the State and SRI P. N. Misra, Senior Advocate assisted by SRI O. P. Pandey, Advocate have been heard and the record of the case has been carefully perused. According to the prosecution case informant Lalta Pandey, PW 7 lived in village Bhiti, Police Station Sikriganj, District Gorakhpur. The accused persons are his collaterals. In between the informant and accused Shesh Nath Pandey there was old enmity and litigation was going on at the time of occurrence. On 1-10- 1978 at about 3 p. m. Jagdish deceased, son of the informant Lalta Pandey was proceeding to Mahadeva Bazar on a cycle for getting wheat grinded. He was accompanied by his maternal uncle Chandrika Misra PW 8. Mahadeva Bazar is towards north of the village at a distance of about one mile. When both of them reached towards east of the village, all the six accused respondents alognwith one unknown person challenged and fell upon Jagdish. Jagdish ran raising cries alongwith cycle. However, the accused surrounded Jagdish and started assaulting him with knives. Ram Das Yadav PW 1, Kishor Pandey PW 2, Indrajeet PW 4, Mahadeo Pandey PW 5, the brother of the informant and the informant Lalta Pandey PW 7 himself and others reached the place of occurrence. Jagdish left the bag of wheat as also cycle and ran but the accused persons overpowered him and assaulted. Accused Hausila fired at Jagdish due to which he fell down. Thereafter, the accused persons kept on assaulting Jagdish by knives. Due to injuries sustained by Jagdish he died in the field of Vishun Chandra. The written report of the case was got prepared by the informant by Indrajeet PW 4. It was lodged at police station Kikriganj on 1- 10-1978 at 5. 30 p. m. The investigation in the case took place. The dead body of deceased Jagdish was sent for post-mortem examination which was performed by Dr. K. M. Singh PW 11, Incharge Medical Care Unit, City Dispensary, Jafra Bazar, Gorakhpur on 2-10-1978 at 12. 30 p. m. The doctor found five punctured wounds, seven incised wounds and two abrasions on the dead body of the deceased. Besides other formal evidence the prosecution has relied upon the eye-witness account adduced in the case. However, PW 1 Ram Das, PW 2 Kishor Pandey, PW 3 Ram Nidhi Pandey (not named in the FIR) and Indrajeet PW 4 (scribe of the written report) have not supported the prosecution case and have been declared hostile by the prosecution. PW 6 Uma Shanker Dubey alias Bulbuli, who is also a witness of fact, is not reliable because he has filed an affidavit and application which has been proved by Shahab Asraf DW 2, wherein he disowns himself to be an eye-witness.
(3.) THE prosecution is thus left with the testimony of informant PW 7 Lalta Pandey, PW 5 Mahadev Pandey, brother of the informant and PW 8 Chandrika Misra, the maternal uncle of the deceased. According to the prosecution case Chandrika Misra was going alongwith the deceased at the time of occurrence. THE place of incident is not in dispute because even according to DW 1 Jagar Nath Singh, the deceased was done to death at the field of Kishun Pal by two unknown persons by knives and ballam at about 7 or 8 p. m. on the date of occurrence. According to Chandrika Misra he resided at Ranipur and had come to village Bhiti at the house of the informant, who is his sister's husband. THE witness stated that he proceeded alongwith the deceased towards Mahadeva Bazar, when the deceased was proceeding to the floor mill. THE witness also stated that the accused persons started assaulting the deceased by knives when they reached about one furlong from the house of the deceased. He further stated that the deceased ran alongwith cycle for about 20 steps whereafter he left the cycle and continued running. He further started that the accused persons kept on assaulting the deceased while the deceased was running. He stated this too that the accused persons surrounded the deceased when he could run about 50 steps. According to the witness when the deceased was surrounded, accused Hausila fired at the deceased by country made pistol whereupon the deceased fell down. He has stated that apart from accused Hausila the other accused again assaulted the deceased by knives. THE witness stated that the entire occurrence took place in about two or three minutes and that accused Hausila fired at the deceased from a distance of two steps. It has been noticed above that the deceased has not sustained any fire arm injury. The sequence of events as narrated by Chandrika Misra shows that the deceased fell down when Hausila accused fired at him and that also from a distance of two steps. Mahadev Pandey and Lalta Pandey, the uncle and father of the deceased, heard the cries when they were about two furlongs away on the eastern side of the village. Mahadev Pandey has stated that he and the informant were present at the door of his house and after about 10 minutes of hearing the cries they started for the place of occurrence and after about seven minutes they reached there. Since the entire incident took place in about two or three minutes, according to PW 8 Chandrika Prasad who is alleged to be accompanying the deceased, the entire incident of chase of the deceased by the accused persons, assault by knives on the deceased and the alleged firing of accused Hausila on the deceased, being seen by Mahadev Pandey and Lalta Pandey is not at all reliable. Mahadev Pandey stated that there were two empty cartridges at about 10 steps towards north of the place where the dead body of the deceased was lying. Chandrika Misra PW 8 did not see any empty, wad or pellet at the place of occurrence. Similar is statement of S. I. Rajendra Singh PW 9 who prepared the inquest of the dead body as well as of S. I. Ram Narain Rai PW 12, the investigating officer of the case. According to the statement of Chandrika Misra the assault on the deceased by knives took place when they first fell upon the deceased. According to the witness at the time of running away of the deceased also assault by knives had taken place and when the deceased fell down the accused again assaulted the deceased. In his cross examination he stated that the deceased was assaulted by knives only once. The above inconsistency in the statement of Chandrika Misra is a pointer that he was not present at the time of occurrence and his claim that he was accompanying the deceased stands belied. Apart from the above inconsistency the prosecution case is completely shattered because no fire arm injury was found on the deceased. Dr. K. M. Singh PW 11 has stated in a very definite term that there was no gun shot wound on the body of the deceased. The doctor has also stated that there could be a variance of 6 to 8 hours in the time of death of the deceased. Apart from the above facts the trial Court has also noticed that the written report is a suspicious document since the scribe Indrajeet stated that he prepared the written report on the dictation of the Daroga and not on the dictation of Lalta Prasad (informant ). The other infirmities in the prosecution case have also been noticed by the trial Court. On over all assessment and appraisal on evidence adduced in the case, the view taken by the trial Court cannot be faulted with. We see no ground for reversal of the order of acquittal passed in the case. In the result the appeal fails and is dismissed.;