- (1.) THIS leave to appeal arises out of a judgment dated 31.01.2009 passed in Session Trial No. 416 of 2007 by a learned Additional Sessions Judge of Unnao recording acquittal of accused persons/respondents who were tried upon the charges under Sections 304/34 and 201 I.P.C.
(2.) IT appears from the trial court judgment that on 21.05.2007 there was a quarrel between accused persons and deceased Shri Ram and Uma Shankar over some trivial matter which led to a scuffle. Accused Ram Asrey and his brother Raj Kumar lodged a report against the deceased and his elder brother. Consequently, they were challaned by the police. On 22.05.2007, deceased Shri Ram and his elder brother Uma Shankar were enlarged on bail. It also appears that when they were coming home, the accused respondents gave them threat. On 23.05.2007, when deceased Shri Ram was going to his in-laws place, his brother Uma Shankar noticed that all the four accused respondents were following him. It is alleged that on 24.05.2007, the accused respondents had uttered the words: 'Shikar Ho Gaya' meaning thereby that they had killed the deceased. The same day, it came to the notice of informant that the dead body of deceased was hanging from a tree. It was identified by his brother Uma Shankar to be the dead body of the deceased (husband of the informant). On the post mortem of dead body, it was found to be a homicidal death. It was also informed to the police by informant wife that as a result of quarrel on 21.05.2007, the accused respondents had strangulated the deceased to death. First Information Report was recorded on 04.06.2007 at 7.30 p. m. and a criminal case bearing crime No. 37 of 2007 was thus registered. Before the informant could reach police station for lodging First Information Report, police had already been informed by one Peer Gulam on the same day that the dead body of one unknown person was hanging from a tree, therefore, a report regarding death of an unknown person was entered into the police records. Panchanama (inquest) of the dead body was conducted on 24.05.2007 at 6.30 p.m. And as per the statements of witnesses recorded at that time the police had recorded a case of suicide by hanging. In the post mortem report, the cause of death was found to be asphyxia as a result of strangulation. During the course of investigation of this case, spot map Ex. Ka-15 was drawn, and finally a challan was put up. Ultimately, four accused respondents (herein) were put up for trial under Sections 302/34 and 201 I.P.C. They pleaded not guilty and claimed trial. It further appears that during the course of trial, the prosecution led the evidence of thirteen witnesses. Among them are Mahangu (PW-1) a formal witness, complainant Phool Kumari (PW-2) wife of deceased and a witness of fact, and Dr. Pawan Kumar (PW-3), an official witness, who performed the post mortem examination on the dead body of deceased on 25.05.2007 at 2.00 p.m. Siya Ram (PW-4) is also a formal witness who has proved the G.D. Entry. Krishnawati (PW-5), Sandeep, son of deceased, (PW-6) and Uma Shankar (PW-7) are the material witnesses. Peer Gulam (PW-8) was found to be a witness of the circumstance that the dead body of deceased was found to be hanging from a tree. Other witnesses are also the official witnesses. In their statements under Section 313 Cr.P.C., the accused respondents denied the incriminating evidence/materials and pleaded false implication. They also led the evidence of a defence witness Raja Ram (DW-1) in their support. The trial court did not find a satisfactory explanation for delay in the lodgement of First Information Report. Besides, it was also noticed that it was only after a due deliberation that the First Information Report had been lodged at the instance of informant Phool Kumari(DW-2). Further, it was also noticed by the trial court that if there was an enmity due to Section 151 Cr. P.C. proceedings between the parties, then instead of killing Shri Ram, the accused respondents should have killed Uma Shankar who was directly involved in that incident. There was no satisfactory evidence so as to show that the accused respondents had given any threat to the deceased on his release on bail. Regarding the circumstance that the accused respondents had followed the deceased, the testimony of Sandeep (PW-6) was found to be scant and an after thought. It was also not found established that if the accused respondents had been following the deceased, then as to whether they had followed him till the scene of occurrence. That apart, circumstances like disappearance of rigor mortis and emission of smell from the dead body also created a doubt about the alleged date of incident. It was also not found established that the accused respondents had been noticed on the place where the dead body of deceased was found hanging. In view of enmity between the parties, and looking to the discrepancies and infirmities in the oral evidence of witnesses, the trial court has rightly recorded the order of acquittal. We have given our thoughtful consideration on the impugned judgment and we do not find any infirmity, illegality or perversity therein to interfere in this leave to appeal.
(3.) IN a catena of decisions, the Apex Court has held that if on appreciation of evidence, two view are possible, then the view taken in favour of the accused should be accepted as the reasonable view. Accordingly this leave to appeal deserves to be dismissed.;