Dismissed

Baljeet and Others v. State of U.P.

Allahabad HC10 Jan 2018CRLA/324/1988

Case brief

AI extract

What is this about?

The Supreme Court dismissed the criminal appeal filed by appellants Baljeet and Anand Prakash against their life imprisonment sentences for murdering Somma. Upholding the trial court's finding of direct evidence and common intention, the court held that minor discrepancies in the FIR and lack of exhaustion of motive did not vitiate the conviction.

What did the court decide?

Criminal Appeal dismissed; accused-appellants remanded to jail to serve remaining sentences.

Baljeet and Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2018)

Reserved A.F.R.

Court No. - 37

Case :- CRIMINAL APPEAL No. - 324 of 1988

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Appellant :- Baljeet & Others Respondent :- State Of U.P. Counsel for Appellant :- Keshav Sahai,Ajeet Srivastava Counsel for Respondent :- D.G.A.

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Hon'ble Bala Krishna Narayana,J. Hon'ble Arvind Kumar Mishra-I,J.

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Heard Sri Ajeet Srivastava, learned counsel for the appellants and Smt. Manju Thakur, State Law Officer for the State.

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This criminal appeal has been preferred by the appellants, Baljeet and Anand Prakash alias Bittu, who are father and son, against the judgement and order dated 05.02.1988 passed by IIIrd Additional Sessions Judge, Saharanpur in S.T. No. 57 of 1986, convicting the appellant no.1, Baljeet under Section 302 read with Section 34 I.P.C. and appellant no.2, Anand Prakash alias Bittu under Section 302 I.P.C. and sentencing both the appellants to undergo imprisonment for life.

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Briefly stated the facts of this case are that P.W.1 Ram Prasad gave a written report (Ext.Ka.1) at P.S.Kotwali City, District- Saharanpur on 11.10.1985 at about 11.20 A.M. stating therein that on 11.10.1985 at about 10.30 A.M., P.W.1 informant Ram Prasad while returning from his factory to his house situated in Mohalla Garhi Malook along with Mohan and Raj Bhagat, on reaching the house of Rajpal, they saw Baljeet (A1) and his son, Anand Prakash alias Bittu (A2) abusing Somma and his brother Ashok, who was crying for help, when Somma objected, Bittu hurled abuses at him loudly and ordered him to keep his mouth shut. Baljeet (A1) exhorted Anand Prakash alias Bittu (A2) to kill Somma as he was arguing on which Anand Prakash alias Bittu (A2) pulled out a long dagger and assaulted Somma with the same on which Somma in order to save his life, ran and entered into the house of Rajpal, followed by Anand Prakash alias Bittu (A2) and Baljeet (A1), who caught hold of Somma in the verandah of the house of Rajpal and thereafter Anand Prakash alias Bittu (A2) started stabbing him with his dagger, causing severe injuries on his neck. Upon receiving the injury on his neck, Somma fell down on the ground. Although

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Anand Prakash alias Bittu (A2) managed to flee from the place of occurrence, threatening the people present there by waving his dagger at them, but Baljeet (A1) was caught on the spot. After sending Somma to the hospital on a rickshaw, P.W.1 informant Ram Prasad came to the police station for lodging the report of the incident.

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On the basis of the written report (Ext.Ka.1), Case Crime No.313 of 1985 u/s 307 I.P.C. was registered against the appellants. Check F.I.R. and relevant G.D. Entry No. 20 at 11.20 A.M. were prepared.

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The investigation of the case was entrusted to S.I. K.P. Singh, who visited the place of occurrence, inspected the same and prepared the site plan (Ext.Ka.10). He took blood-stained and simple earth from the place of occurrence, sealed the same in separate containers and prepared their recovery memos (Exts.Ka.3 and Ka.4 respectively). When he came to know that Somma had succumbed to his injuries at 11 A.M. in the S.B.D. Hospital, Saharanpur where he had been admitted for treatment, he came back to the police station and got the case converted to one u/s 302 I.P.C. Its investigation was transferred to

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P.W.6 Inspector Parmeshwar Rai, who was posted as S.O of P.S.- Kotwali, District- Saharanpur at the relevant time. After the information sent by the authorities of S.B.D. Hospital, Saharanpur about the death of Somma was received at P.S.- Janakpuri at 12.40 P.M., the same was entered at G.D. No. 15 at P.S.- Janakpuri and P.W.9 S.I. Chhajju Singh Tomer was entrusted with the duty of conducting inquest on the dead body of Somma. P.W.9 S.I. Chhajju Singh Tomer along with constables Raj Kumar and Rajpal Singh went to the hospital and after holding inquest, prepared the inquest report of the deceased (Ext.Ka.16), photo lash, challan lash and letter addressed to C.M.O and R.I. which have been brought on record and proved as (Exts.Ka.17 to Ka.20). Thereafter, he sealed the dead body and handed over the same to constables Raj Kumar and Rajpal Singh for taking the same to the mortuary for postmortem examination. P.W.10 Constable Raj Kumar took the dead body of deceased from S.B.D. Hospital, Saharanpur to the mortuary and handed over the same to P.W.7 Dr. S.C. Banga, posted as Medical Officer in S.B.D. Hospital, Saharanpur, who conducted the postmortem on the dead body of Somma on 11.10.1985 at about 5 P.M. and

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thereafter prepared his postmortem report (Ext.Ka.13).

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Upon completion of investigation, charge sheet (Ext.Ka.12) was submitted by P.W.6 Parmeshwar Rai, against both the accused u/s 302 I.P.C. before the Chief Judicial Magistrate, Saharanpur. Since the offence mentioned in the charge sheet was triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Saharanpur committed the accused-appellants for trial to the Court of Sessions Judge, Saharanpur where the case was registered as S.T. No. 57 of 1986, State Vs. Baljeet and another and made over for trial from there to the Court of IIIrd Additional Sessions Judge, Saharanpur, who on the basis of material collected during investigation and after hearing the prosecution as well as accused-appellants on the point of charge, framed charge u/s 302 I.P.C. against Anand Prakash alias Bittu (A2) and u/s 302/34 I.P.C. against Baljeet (A1). The accused-appellants abjured the charge and claimed trial.

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The prosecution in order to prove its case against the appellants examined as many as ten witnesses of whom P.W.1 informant Ram Prasad, P.W.2 Mohan, P.W.3 Raj Bhagat were examined as witnesses of fact while

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P.W.4 Head Constable Mohkkam Singh, P.W.5 S.I. Kunwar Pal Sharma, P.W.6 Parmeshwar Rai, P.W.7 Dr. S.C. Banga, P.W.8 Constable Dharam Pal Singh, P.W.9 S.I. Chhajju Singh Tomar and P.W.10 Constable Raj Kumar were produced as formal witnesses.

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The accused in their statements recorded u/s 313 Cr.P.C. denied the prosecution case and alleged false implication. According to Anand Prakash alias Bittu (A2), P.W.1 informant Ram Prasad was not related to his father. He denied the allegations of prosecution and alleged false implication due to enmity. Baljeet (A1) also denied his relationship with P.W.1 informant Ram Prasad and asserted that P.W.1 was inimical towards him and it was on account of the aforesaid enmity that he had deposed against him. P.W.2 Mohan and P.W.3 Raj Bhagat, the other two witnesses were close associates of P.W.1 informant Ram Prasad. He further stated that he was arrested from his shop and the shirt which was produced in the Court, did not belong to him.

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The learned IIIrd Additional Sessions Judge, Saharanpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, convicted Baljeet

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(A1) u/s 302/34 I.P.C. and Anand Prakash alias Bittu (A2) u/s 302 I.P.C. and awarded aforesaid sentences to them.

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Hence, this appeal.

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Learned counsel for the appellants has castigated the prosecution case inter-alia on the grounds that the F.I.R. does not disclose any motive for the commission of the offence although the prosecution witnesses of fact examined at the trial tried to make up for the aforesaid lacuna in the F.I.R. by testifying that an incident, involving the deceased and Anand Prakash alias Bittu (A2), had taken place a day before the incident in which deceased Somma had objected to Anand Prakash alias Bittu (A2) of hurling taunts at the girls of the locality, which led to exchange of some hot words between them. The presence of P.W.1 informant Ram Prasad at the place and time of occurrence of murder is extremely doubtful in view of the fact that if he had actually witnessed the occurrence, he would have narrated in the F.I.R. that Anand Prakash alias Bittu (A2) had inflicted two dagger blows on deceased Somma, one on his neck and the other on his abdomen. But he in the F.I.R. has merely stated that Somma had received several injuries on his neck. The aforesaid

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discrepancy with regard to the seat of injuries received by the deceased as mentioned in the F.I.R. vis-a-vis the medical evidence, belies his presence at the place of occurrence. The absence of the recital in the F.I.R. that during the process of attack, the blood which oozed out from the wounds inflicted by Anand Prakash alias Bittu (A2) on the deceased had stained the shirt of Baljeet (A1), is another factor which belies his claim of being the eye witness of the occurrence; that the promptness with which the F.I.R. was lodged is in itself indicative of the fact that the same has been manipulated by the police; that the medical evidence does not collate the prosecution story; that P.W.1 informant Ram Prasad being a close relative of the deceased falls in the category of an interested witness and no reliance can be place on his evidence for the purpose of upholding the conviction of the appellants; that the prosecution having failed to prove its case against the appellants by any cogent and reliable evidence, neither the recorded conviction of the appellants nor the sentence of imprisonment for life awarded to them by the trial court can be sustained and are liable to be set-aside.

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Per contra Smt. Manju Thakur, State Law Officer

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apppearing for the State has vehemently submitted that the instant case is a case of direct evidence. The deceased Somma was knived to death by the appellants in broad daylight at about 10.30 A.M. in a residential area of Saharanpur in the house of one Rajpal in a daring manner. The guilt of the appellants stands fully proved from the testimony of P.W.1 informant Ram Prasad and P.W.3 Raj Bhagat, even if the testimony of P.W.2 Mohan is excluded from consideration on account of his having filed his affidavit before the trial court denying any knowledge about the occurrence. There is no material inconsistency between the ocular version and the medical evidence. The omission on the part of P.W.1 informant Ram Prasad to speak out the motive for the commission of the offence and the exact manner of assault in the F.I.R. would not vitiate conviction of the appellants in view of the settled law that the F.I.R. is not an encyclopaedia. The impugned judgement and order do not warrant any interference. This appeal lacks merit and is liable to be dismissed.

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We have heard the learned counsel for the parties and perused the entire lower court record.

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The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the appellants beyond all reasonable doubts or not ?

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As far as the death of Somma is concerned, there is virtually no dispute that the same is homicidal. P.W.7 Dr. S.C. Banga, who was posted as Medical Officer in S.B.D. Hospital, Saharanpur on 11.10.1985 and had performed the autopsy on the dead body of Somma and prepared his postmortem report which was proved by him as (Ext.Ka.13), in his evidence tendered before the trial court, deposed that at the time of his death, the deceased was aged about 37 years and his death had occurred at about ¼th of the day (six hours prior to the conducting of the postmortem) and it was possible that he had died at about 11 A.M. P.W.7 Dr. S.C. Banga noted following antemortem injuries on the dead body of Somma :-

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Incised wound 2 cm x 1 cm x muscle deep on the angle of left mandible, 2 cm below the left ear, oblique in direction.

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Abraded contusion 4 cm X 3 cm on the right side upper front of chest, 3 cm above the right nipple at 12 o'clock position.

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Abraded contusion 4 cm x 2 cm on the back of right forearm, 4 cm below right elbow joint.

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Infected wound ½ cm x ½ cm on the dorsal aspect of the terminal pharynx of right ring finger.

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Abraded contusion 2 cm x 1 cm on the back and upper part of left forearm, 5 cm below the elbow joint.

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Punctured wound 2 cm x 1 cm x cavity deep on the upper part of abdomen at 1 o'clock position. Margins inverted, wound spindle in shape.

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There was no cross-examination of P.W.7 Dr. S.C. Banga with regard to the estimated time of death and the ante-mortem injuries no.1 and 6 which were found on the neck and abdomen of the deceased being caused by a sharp-edged weapon. The discrepancy between the eye witness account and the medical evidence on record and the recitals made in the F.I.R. to which our attention has been invited by the learned counsel for the appellants and which according to him totally belie the claim of the witnesses produced by the prosecution as eye witness of the occurrence inter alia are that as per the F.I.R., Anand Prakash alias Bittu (A2)

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had inflicted several dagger blows on the deceased's neck whereupon he had fallen on the ground; that P.W.1 informant Ram Prasad in his examination-in-chief stated that Anand Prakash alias Bittu (A2) had attacked Somma with his dagger on his neck and abdomen and that the postmortem report of the deceased shows as many as six injuries of which according to P.W.7 Dr. S.C. Banga, who had conducted the postmortem on the dead body of the deceased, antemortem injury no.1 alone was caused by dagger whereas antemortem injury no.2, 3 & 4 could be caused by hard and blunt object like lathi. It has been argued by learned counsel for the appellants that the prosecution having failed to explain the antemortem injury nos.2, 3 and 4 found on the dead body of Somma which were caused by hard and blunt object, none of the three eye witnesses have deposed that apart from dagger, the deceased was assaulted by the appellants by lathi or any other blunt object. Hence, no credence can be placed on the alleged eye witness account of occurrence narrated by the three so-called eye witnesses of the occurrence in their evidence tendered before the trial court. We, however, do not find any force in the aforesaid

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argument. If the evidence of P.W.2 Mohan, P.W.3 Raj Bhagat and P.W.7 Dr. S.C. Banga, who had conducted the postmortem on the dead body of Somma is read conjointly, then there does not appear to be any material conflict between the eye account and the medical evidence. P.W.2 Mohan and P.W.3 Raj Bhagat have deposed before the trial court that the deceased Somma after being stabbed by Anand Prakash alias Bittu (A2) with the dagger, had fallen on the ground and had repeatedly struck his hand against the ground out of pain. The abrasions found on the deceased's dead body could easily have been caused on account of the aforesaid act of the deceased after he had fallen on the ground. Moreover, the dimensions of the abrasions are minor as is evident from the postmortem report and could have been caused on account of deceased falling on the ground. P.W.7 Dr. S.C. Banga has also deposed on page 49 and 50 of the paper book in his examination-in-chief that apart from the antemortem injuries no.1 and 6, the other injuries found on the dead body of Somma could have been caused by deceased falling on a hard surface except antemortem injury no.4 which appeared to be an old injury. Thus, there is no

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inconsistency in the medical evidence and the oral evidence lead by the prosecution which is not irreconcilable or which goes to the core of the prosecution case, rendering it unreliable.

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The next question which arises for our consideration is that whether the evidence of P.W.1 informant Ram Prasad, P.W.2 Mohan and P.W.3 Raj Bhagat is liable to be discarded on the ground that they are partisan witnesses being relatives of the deceased. Before proceeding to scrutinize the evidence of the witnesses of fact, we would like to first deal with the preliminary objections raised by the learned counsel for the appellants that the evidence of P.W.1 informant Ram Prasad, P.W.2 Mohan and P.W.3 Raj Bhagat is liable to be discarded on the ground of their being interested witnesses. The law is settled that the evidence of a witness is not liable to be discarded merely on the ground of his being related to the deceased, if upon, a careful evaluation of his testimony, the Court comes to the conclusion that he has given a cogent version of the occurrence and there is no law which prescribes conviction of an accused on the basis of evidence of such witnesses. The only mandate is that the evidence

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of an interested witness cannot be scrutinized cautiously. We now proceed to scrutinize the evidence of three witnesses of fact produced by the prosecution during the trial in the light of the aforesaid principle.

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P.W.1 informant Ram Prasad in his examination-inchief apart from supporting the prosecution case, as spelt out in the F.I.R., further deposed that Anand Prakash alias Bittu (A2) had caused injuries to the deceased on his neck and stomach and one day before the incident, the deceased and Anand Prakash alias Bittu (A2) had quarreled with each other when the deceased had objected to Anand Prakash alias Bittu (A2) teasing and taunting the girls of the locality.

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P.W.2 Mohan as well as P.W.3 Raj Bhagat fully corroborated the evidence of P.W.1 informant Ram Prasad on all material points relating to the occurrence. The presence of P.W.1 informant Ram Prasad at the time and place of the incident cannot be doubted even for a moment. P.W.1 informant Ram Prasad was extensively cross-examined by the defence counsel but he has failed to elicit anything out of him on account of which his evidence could be disbelieved or his presence on the spot and at the time of the incident be doubted

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except for a few minor discrepancies including his failure to state in the F.I.R. that the appellant Anand Prakash alias Bittu (A2) after striking a blow with his dagger on the neck of Somma, had also stabbed Somma in his abdomen with a dagger, which in our opinion are natural omissions. It is not possible for any witness to give a perfect account of an occurrence. He has stated that the deceased was dealt repeated blows by the appellant with his dagger. The suggestion given to him that he was not present on the spot was not only denied by him but the same stands belied from the sequence of events which had taken place after the occurrence. The F.I.R. of the incident was in the handwriting of P.W.1 informant Ram Prasad who had gone to the police station along with Baljeet (A1) and handed him over to the police and had given the report of the incident at P.S.- Kotwali City, District- Saharanpur at about 11.30 A.M., within 40 minutes of the occurrence.

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Learned counsel for the appellants has argued that P.W.2 Mohan had filed an affidavit before the trial court in which he had specifically stated that he had not seen the incident and the prosecution was pressurizing him

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to give false evidence. In order to prove the aforesaid fact, the defence counsel had examined Shiv Charan Singh, Advocate as D.W.1 and had identified the signature of P.W.2 Mohan (Ext.Kha.1) on the affidavit sworn before public notary. Satya Prakash Mittal, the public notary who had allegedly verified the affidavit of P.W.2 Mohan, was examined as D.W.2. He proved the affidavit as (Ext.Kha.2). However, P.W.2 Mohan in his cross-examination has explained the circumstances under which the affidavit (Ext.Kha.2) was procured by Baljeet (A1) from him by deposing that Baljeet (A1) had got him arrested in a case u/s 25 of the Arms Act and had thereafter obtained his thumb impression on the affidavit fraudulently. The explanation given by P.W.2 Mohan appears to be correct as it has not been suggested to this witness that he was not arrested in a case u/s 25 of the Arms Act. Moreover, the affidavit (Ext.Kha.2) is in English and P.W.2 Mohan is illiterate. The explanation given by P.W.2 Mohan with regard to the circumstances under which the affidavit (Ext.Kha.2) was obtained, appears to be probable and the same does not appear to be a result of free will of P.W.2 Mohan and therefore, no credence can be placed on the

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same for the purpose of holding that P.W.2 Mohan had supported the prosecution case in his evidence recorded before the trial court under duress or pressure of the prosecution.

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Even if it is assumed for the sake of arguments that P.W.2 Mohan had deposed before the trial court under the compulsion of the prosecution and his evidence is liable to be excluded from consideration, there still remains the testimony of P.W.3 Raj Bhagat on record whose evidence has throughout remained consistent and clinching. P.W.3 Raj Bhagat bears the character of an independent witness and the prosecution has not been able to shatter his credibility. There is no suggestion that P.W.3 Raj Bhagat was bearing any enmity with the appellants. P.W.3 Raj Bhagat was also subjected to a gruelling crossexamination but his evidence throughout remained unchanged. From the evidence of P.W.1 informant Ram Prasad, P.W.2 Mohan and P.W.3 Raj Bhagat, it is established beyond all reasonable doubts that Somma had died as a result of injuries inflicted on him by Anand Prakash alias Bittu (A2) with his dagger on 11.10.1985 at about 10.30 A.M. in the house of Rajpal

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situated in Mohalla Garhi Malook. We now have to examine whether the conviction of Baljeet (A1) recorded by the trial court by taking aid of Section 34 of I.P.C., can be sustained or not. All the three witnesses have deposed in unison that on the date of the occurrence at about 10.30 A.M. when they were returning from the factory and going to their respective houses, they had seen both the appellants abusing the deceased in front of the house of Rajpal and Ashok, deceased's brother was trying to intercede. When deceased Somma asked Anand Prakash alias Bittu (A2) not to abuse him and keep his mouth shut, Baljeet (A1) exhorted Anand Prakash alias Bittu (A2) to kill him as he was arguing too much whereupon Anand Prakash alias Bittu (A2) took out a dagger from the pocket of his pant and assaulted Somma on which he ran into the house of Rajpal followed by both the appellants while Baljeet (A1) got hold of Somma, Anand Prakash alias Bittu (A2) inflicted dagger blows on him.

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Thus, from the evidence of three witnesses of fact examined by the prosecution during the trial, it is established that Baljeet (A1) along with Anand Prakash Bittu (A2) committed the murder of Somma on

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11.10.1985 at about 10.30 A.M. in the house of Rajpal situated in Mohalla Garhi Malook in furtherance of common intention.

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It has been argued by the learned counsel for the appellants that neither in the F.I.R. nor in the statement of P.W.1 informant Ram Prasad, any motive for commission of the crime was disclosed and P.W.1 informant Ram Prasad for the first time in his evidence tendered before the trial court deposed that a day before the occurrence, a quarrel had taken place between the deceased Somma and Anand Prakash alias Bittu (A2) when the deceased had objected to Anand Prakash alias Bittu (A2) taunting and teasing the girls of the locality and it was on account of the aforesaid occurrence, the deceased had been murdered by the appellants. It is true that neither the F.I.R. nor the statement of P.W.1 informant Ram Prasad recorded u/s 161 Cr.P.C. speaks of any motive and the motive for committing the crime which has been dislcosed by P.W.1 informant Ram Prasad for the first time before the court clearly appears to be an afterthought and moreover P.W.1 informant Ram Prasad had not witnessed the incident in which deceased and Anand

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Prakash alias Bittu (A2) had quarrelled with each other. So it can safely be held that the prosecution has failed to prove the motive for committing the murder of the deceased. But the same would not be of any advantage to the accused in view of the settled legal proposition that in case of direct evidence, the motive loses significance. The present case is a case of direct evidence where the prosecution has succeeded in proving by cogent and reliable evidence that the deceased Somma was stabbed by Anand Prakash alias Bittu (A2) while Baljeet (A1) had caught hold of him and thereby immobilized him. The failure on the part of prosecution to prove the motive will not adversely affect the credibility of the prosecution story in any manner.

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In view of the foregoing discussion, we do not find that the learned trial Judge committed any illegality or legal infirmity in convicting Baljeet (A1) u/s 302/34 I.P.C. and Anand Prakash alias Bittu (A2) u/s 302 I.P.C. and awarding them the sentences of imprisonment for life. We do not find any reason to interfere with the impugned judgement and order.

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This appeal lacks merit and is accordingly

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dismissed.

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The accused-appellants are on bail. Chief Judicial Magistrate, Saharanpur shall forthwith get the accusedappellants, Baljeet (A1) and Anand Prakash alias Bittu (A2) arrested and sent to jail for serving out the remaining part of their sentences.

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Order Date :- 10.01.2018 KS

Baljeet and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

Baljeet and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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