- (1.) HEARD learned A.G.A. and perused the lower court record.
(2.) THIS application for granting the leave to appeal has been filed against the judgment and order dated 11.11.2010 passed by learned Addl. Sessions Judge, Court No. 4, Pratapgarh in S.T. 323 of 2009 whereby the accused respondents have been acquitted for the offence punishable under section 302/34 IPC. From the perusal of the record and impugned judgment, it reveals that the FIR of this case has been lodged by P.W. 1 Hori Lal on 28.8.2007 at 10.00 A.M. in respect of the incident allegedly occurred on 27.08.2007 alleging therein that the deceased Smt. Raj Kumari, wife of the first informant Hori Lal had gone to her paddy field on 27.8.2007 for the purpose of cleaning the gross in paddy field and the first informant had gone to village Rasulpur to take the kerosene, after returning from Rasulpur he went to the paddy field with water, he saw the deceased in a dead condition lying in the filed. The nephew Shobh Lal @ Shobhai brought her to the home. It was expected that on account of wild animal biting she was unconscious, therefore Jhadphoonk was done. The bleeding was profusing from her mouth and eyes. Leaving the dead body of the deceased at his home the first informant went to the police station for lodging the FIR. According to the post mortem examination report the deceased had sustained five injuries in which injury No. 1 was contused swelling 3 x 1 cm x bone deep on the left side of the fore head, injury No. 2 was abraded contusion 2 x.5 cm on the left side of the neck, injury No. 3 was multiple abrasions in the inner side of left ankle, injury No. 4 was lacerated wound 3 x 1 cm x muscle deep on the middle of the back and injury No. 5 was multiple abrasion 2x.5 cm on the upper and literal wall of vagina and blood from vagina was present. The cause of death was due to asphyxia as a result of strangulation. The post mortem examination was done on 29.8.2007 at 2.30 P.M. The duration of the death was about two days old. According to the FIR exhibit Ka -1 no person was named as accused, thereafter an application dated 7.09.2007 was given by the first informant Hori Lal Saroj to S.P. Pratapgarh, the same has been proved and marked as Exhibit Ka -2 alleging therein that the first informant along with the deceased had gone to his field of paddy on 27.8.2007 at about 9.00 A.M. for the purpose of cleaning the gross, but on information of distribution of kerosene oil from fair price shop he went to fair price shop leaving his wife alone in the field, when he returned back at about 1.30 P.M. he saw his wife lying in the field in a dead condition. On his hue and cry many persons of the village gathered there. When the first informant had gone to fair price shop leaving his wife alone in the field, in adjoining field Bhola Saroj, Nanhey Lal, Putti Lal and Smt. Ashugain were working in their field of paddy. One day prior the alleged incident they had beaten to the deceased by using the kicks and fists blows and had extended the threat of her murder by pouring acid. Many of the times, prior to commission of the alleged offence they had hurled the abuses and had extended threat of life. They were having the annoyance over the land. The son of the first informant namely Monu had gone to give the water to the deceased, but prior reaching to the field of paddy the children of the above mentioned accused family namely Pradhan, Arjun and Murat had met him who had told him that his mother was sent to the heaven and his water was fallen down. The four minor children of the first informant were weeping and crying and no other person is in his family, he gave its information to village Pradhan and asked to call the police. By that time he along with his children was looking after the dead body. On 28.8.2007 at about 6.00 A.M. his relative including sister etc. came to his village, his sister gave the telephonic message to the police station, Manikpur then police came and prepared the panchayatnama and she was taken to the police station along with his children where a written report was submitted. But his report was not written and he was asked to leave the police station by the Officer Incharge and extended a threat in case he came again to the police station his limbs will be broken. The wife of the first informant had received injuries on her person and blood was profusing from her mouth and nostril. His wife was killed on account of the enmity over a land by Bhola Saroj, his wife Ashugain, his brother Nanhey Lal and Putti Lal. In support of the prosecution version P.W. 1 Hori Lal, P.W. 2 Monu have been examined as eye witnesses. According to the FIR dated 28.8.2007 and application dated 7.09.2007 moved by the first informant to S.P. Pratapgarh, they were not the eye witness of the alleged incident. According to the deposition of P.W. 1 he had not seen the alleged incident but P.W. 2 Monu also met with sons of Bhola, Nanhey Lal and Maha on way to his field of paddy, they told him that his mother was sent to heaven. The water was snatched by them, it was taken and thrown away, but he further stated that he saw the accused persons causing the injuries to the deceased. After making hue and cry he ran away from the place of the incident and narrated the story to his father, brother, sister and Mausi, thereafter along with family members he came to the place of the incident and saw his mother in a dead condition. The P.W. 3 Dr. S.K. Srivastava, P.W. 4 constable Zahil Ahmad Siddiqui, P.W. 5 Chhotey Lal Sonkar, P.W. 6 Anoop Kumar and P.W. 7 Ram Kesh Verma are formal witnesses. The statement of the accused respondents were recorded under section 313 Cr.P.C. No person in defence was examined. The trial court has considered the testimony of the witnesses. According to his findings neither the P.W. 1 nor the P.W. 2 had seen the alleged incident and there is no other evidence to connect the accused respondents with the commission of the alleged offence. It appears that the names of the accused respondents were not disclosed by the first informant in the FIR but in an application moved after nine days of the alleged incident the names of the accused persons were disclosed as suspected accused on basis of the earlier quarrel. According to the deposition of the P.W. 2 itself that he was on way to the place of the incident he met with the sons of the accused respondents Bhola, Nanhey and Maha who told him that his mother was sent to the heaven, it means that by that time the deceased was killed. But he stated that he thereafter went to the place of the incident and thereafter accused persons caused the injuries on the person of the deceased. The prosecution story is not corroborated by the post mortem examination report also. According to the post mortem examination report injury No. 5 was multiple abrasion on vaginal walls and bleeding from the vagina was present. It shows that the rape was committed and deceased has been murdered by way of strangulation. Admittedly the deceased was killed in a paddy field where neither the first informant P.W. 1 nor his son P.W. 2 were present. In such a circumstance, the trial court recorded the findings of the acquittal. The view taken by the trial court acquitting the accused respondents is a possible view because there is no evidence to connect them with the commission of the alleged incident. The view taken by the trial court does not require any interference by this court, therefore, prayer for granting the leave to appeal is refused.
(3.) ACCORDINGLY this application is dismissed.;