SHASHI KANT,J. - (1.) This Government Appeal has been filed under Section 378 Criminal Procedure Code, 1973 (in short 'Cr.P.C.') against the judgment and order dated 18.04.1985, passed by learned Vth Additional Sessions Judge, Etah in Sessions Trial No. 380 of 1984 (State v. Indrapal and Others) , whereby the accused respondents namely Indrapal, Udayvir @ Gavvu, Karua and Ket Singh have been acquitted for the offences punishable under Section 302/34 of Indian Penal Code, 1860 (in short 'IPC').
(2.) During the pendency of the appeal, the accused respondent no.1 Indrapal, respondent no.2 Karua and respondent no.4 Ket Singh have died and appeal filed against them is abated vide order dated 27.05.2016. Thus, the appeal stand only against the remaining accused respondent Udayvir @ Gavvu.
(3.) The prosecution case in brief is that ; 3. 1. As per prosecution story, the deceased Kali Charan was running a shop in the village and having some dispute regarding money transactions with the accused respondents relating to shop . The accused respondents were having ill-will with the deceased on account of that. On 03.07.1982 in the evening at about 6:00 p.m. when the deceased went to the 3rd floor of his house to take his vest (baniyaan) for bath, the accused respondents, Indrapal, Udayvir @ Gavvu, Karua and Ket Singh shot fires on him with intention to kill. The accused Indrapal fired first shot from his illegal rifle which hit on his chest. The shot fired by accused Karua from his unlicensed gun missed him narrow by, while shots fired by accused Udayvir and Ket Singh from their licensee guns hit his hands. On the alarm of P.W.1 Smt. Krishna Devi and his son P.W.2 Ram Khilari, the witnesses Dhanpal, Sukhvir Singh and large number of villagers rushed to the spot. Seeing them, the accused respondents had made good their escape. The informant and the witnesses seen the accused respondents firing on Kali Charan and fleeing away from there. 3. 2. After the occurrence, the informant P.W.1 Smt. Krishna Devi in order to get scribed a written report-Exhibit- 'ka-1' went to the Police Station Amanpur along with injured Kali Charan, who was in an unconscious condition and submitted her written report there. On the basis of the written report, the FIR of the case Exhibit- 'ka-3' was registered as Case Crime No. 93 of 1982 under Section 307 IPC on 03.07.1982 at 7:30 p.m. 3. 3. The injured Kali Charan was sent to P.H.C. Amanpur but due to non availability of the Doctor, no medical aid could be provided to him and he was taken to Etah, where P.W.3 Dr. A.K. Malpani examined him, who found five gun shot wounds on the chest and arms etc of the injured. Thereafter, he was taken to Agra Medical College and Gwalior for treatment. He remained hospitalized for nearly two months and ultimately succumbed to his injuries on 02.09.1982. 3. 4. After the death of the injured Kali Charan, section 302 IPC was added in the case. The inquest report was prepared and post mortem examination of the dead-body was conducted at Gwalior. 3. 5. The investigation of the case was taken over by P.W.4 Sri S.N. Tripathi, Station Officer of Police Station Amanpur who reached on the spot, recorded the statements of the first informant P.W.1, P.W.2 Ram Khilari and prepared the site plan - Exhibit- 'ka-5'. He also took sample of plain and blood stained soil and scratching of the roof from the place of occurrence and prepared Fard-Exhibit- 'ka-6'. 3. 6. The investigating Officer P.W.4 has also recorded the statements of other witnesses. Thereafter, the case was investigated by Inspector/Sub-Inspector Sri R.B. Singh, who after completing the necessary formalities of the investigation, submitted the charge sheet, Exhibit-'ka-7' against the accused respondents. 3. 7. Postmortem examination on the body of the deceased was conducted on 03.07.1982 at Gwalior by Dr. Taufi who found the five gun shot wounds on the chest, arms etc. In his opinion the general condition of the patient was low. Two of the injuries were found simple while remaining were kept under observation. The injuries were fresh. The doctor prepared the injury report as Exhibit -'ka2' and advised X-ray examination of the patient. 3. 8. In due course of time the case was committed to the Court of Sessions and was registered as Sessions Trial No. 380 of 1984. 3. 9. Against the accused respondents, the charges have been framed under section 302/34 IPC who have denied the same and claimed for trial. 3. 10. To prove its case, the prosecution has examined P.W.1 Smt. Krishna Devi, P.W.2 Ram Khilari, P.W.3 Dr. Malpani and P.W.4 Sri S.N. Tripathi as formal witnesses along with written report (Exhibit -'Ka-1'), injury report (Exhibit-'Ka-2'), FIR (Exhibit-'Ka-3'), copy of G.D. dated 03.07.1982 (Exhibit-'Ka-4'), site plan (Exhibit-'Ka-5'), memo for taking samples of blood stained and plain scratching of the roof (Exhibit-'Ka-6'), charge sheet (Exhibit-'Ka-7') and copy of G.D. Dated 04.07.1982 (Exhibit-'Ka-8') as documentary evidence. 3. 11. The accused respondents in their statements recorded under Section 313 Cr.P.C., 1973 have denied the prosecution case and evidence produced by it stating therein that they have been falsely implicated in the present case. The witnesses have given evidence against them due to village party-bandi. However, no witness has been examined by them. 3. 12. After hearing learned counsel for the parties and evaluation of the evidence available on record, the Trial Court found that the prosecution could prove its case against the accused respondents beyond reasonable doubt and acquitted them for the offences punishable under section 302/34 IPC. 3. 13. Being aggrieved thereof, the appellant State of Uttar Pradesh has filed the instant appeal on various grounds mentioned in the memo of the appeal.;