Allowed

Abhay Pal and Others v. State of U.P.

Allahabad HC28 May 2018CRLA/457/2011

Case brief

AI extract

What is this about?

Appeals against conviction under Sections 302/149, 148 and 147 IPC for a fatal assault arising from a land dispute. The court found the genesis of the prosecution story unnatural, the source of light unproved, the medical evidence inconsistent with the eyewitness account, the FIR anti-timed and the recoveries doubtful, and acquitted the appellants.

What did the court decide?

Appeal allowed; conviction and sentence set aside; appellants acquitted of all charges.

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

A.F.R.

Court No. - 4

Case :- CRIMINAL APPEAL No. - 457 of 2011 Appellant :- Abhay Pal And Others Respondent :- State Of U.P. Counsel for Appellant :- Gaurav Singh,J.K.Shishodiya,Mrs.Archana Singh Jadaun,Prem Shanker,Rahul Misra,V.P. Srivastava Counsel for Respondent :- Govt. Advocate

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Connected with Case :- CRIMINAL APPEAL No. - 78 of 2011

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Appellant :- Raj Pal Sharma & Others Respondent :- State Of U.P. Counsel for Appellant :- Dharm Praksh Mishra,Ankur Tondon,Moeez Uddin,Rahul Misra,V.K. Singh Counsel for Respondent :- Govt. Advocate,Prabhakar Tripathi

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Hon'ble Bala Krishna Narayana,J. Hon'ble Rajiv Gupta,J.

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(Delivered by Hon'ble Rajiv Gupta, J)

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The present Criminal Appeal No. 457 of 2011 has been filed by appellants Abaipal, Dharmapal and Yuvraj all sons of Raj Pal Sharma and Criminal Appeal No. 78 of 2011 has been filed by appellants Raj Pal Sharma, Raj Bahadur and Pawan against the common judgment and order dated 29.11.2010 passed by Addl. Sessions Judge, Court No. 2, Bulandshahr in Sessions Trial No. 1028 of 2009, State vs. Pawan & others arising out of Case Crime No. 262 of 2009, whereby all the appellants have been convicted for the offence punishable under Section 302 read with Section 149 IPC and awarded the sentence of life imprisonment and a

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fine of Rs. 20,000/- and in default of payment of fine to undergo six months additional imprisonment. Appellants Abhay Pal, Yuvraj and Dharampal have further been convicted under Section 148 IPC and awarded the sentence of one year and six months imprisonment whereas the appellants Pawan, Raj Bahadur and Raj Pal Sharma have been convicted under Section 147 IPC and awarded the sentence of one year rigorous imprisonment. All the sentences have been directed to run concurrently.

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From the perusal of the record, it transpires that the appellant No. 1 Rajpal Sharma, has expired during the pendency of appeal as such the appeal qua appellant No. 1 in Criminal Appeal No. 78 of 2011 stood abated.

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The prosecution case as unfolded in the written report of P.W-1 first informant Surendra Kumar marked as Exbt. Ka-1 is that on 13.6.2009 at about 8 P.M, appellants Pawan and Raj Bahadur sons of Raj Pal Sharma alongwith Chandrapal Sharma son of Som Prakash came to his shop and stated that in their village- Akarwas there is a dispute between them in respect of joint possession of a land and requested him to accompany them to his village, so that the dispute could be settled. It is further stated that the first informant alongwith his elder brother and one Raj Pal

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Sharma son of Bal Mukund, Rajesh Kumar Gaur and Ajay Kumar Bhardwaj reached at village- Akarwas, however, as soon as they reached there Pawan and Raj Bahadur stated to his brother Ajay Pal, Dharampal and Yuvraj and father Raj Pal Sharma that Chairman Ashok is a well wisher of Surajpal and is not permitting them to take possession over the plot. On the instigation of Raj Pal, his brother Ashok Kumar was attacked by Abaipal, Yuvraj and Dharampal by axe and farsa whereas Pawan, Raj Bahadur and Raj Pal beat him with lathi and danda. Raising alarm, an attempt was made to rescue his brother, however, the assailants continued to mercilessly beat his brother till he fell down on the ground and thereafter left the place of incident threatening them. The said incident is alleged to have taken place at the doorstep of the assailant Rajpal at about 10:45 P.M. in the night. It is further stated that the first informant alongwith his associates brought his brother Ashok at Debai Hospital where the doctors declared him dead and his dead body is kept at the hospital.

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On the basis of said written report (Exbt. Ka-1) a first information report was lodged vide Case Crime No. 262 of 2009, under Sections 147, 148, 149, 302, 504, 506 IPC at Police Station- Debai, District- Bulandshahr on 14.6.2009 at

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00.50 hours. On the basis of said check FIR (Exbt. Ka-2) the corresponding G.D. entry vide G.D. Report No. 3 at 00.50 hours dated 14.6.2009 was drawn by P.W.-3 Dinesh Chand, carbon copy whereof was brought on record, which is marked as Exbt. Ka-3. The investigation of the said case was entrusted to P.W.-5 S.I. Sanjai Kumar Tyagi Officer Incharge, P.S. Debai. District- Bulandshahr, who recorded the statement of the first informant and thereafter proceeded to the Government Hospital, Debai and got the inquest report prepared by Jawahar Lal Tomar which is marked as Exbt.Ka-13 and after preparing the relevant documents including the Photo-nash, Chitthi C.M.O, Chithi R.I. Challan-nash and sealed sample etc. marked as Exbt. Ka- 14 to 18, despatched the dead body to District Hospital, Bulandshahr for conducting the post-mortem. The Investigating Officer thereafter reached the place of incident and collected the blood stained earth, plain earth and a sleeper from the place of incident and prepared its fard recovery memos which are marked as Exbt. Ka-8 and Ka-9 respectively. Thereafter, on 14.06.2009 at the pointing out of the first informant, the Investigating Officer prepared the site plan which is marked as Exbt. Ka-10. Thereafter, on 15.06.2009 arrested the accused Rajpal and Dharampal and

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recorded their statements, who confessed their guilt in the incident and disclosed that they can get the crime weapon recovered. On the basis of said disclosure, on 15.06.2009 itself the Investigating Officer got recovered a farsa at the pointing out of appellant Dharampal from his house and thereafter appellant Rajpal got recovered a thick wooden danda from his house. On the basis of aforesaid recovery, the Investigating Officer prepared the fard recovery memo which has been proved as Exbt. Ka-11. Thereafter, the investigation was handed over to the Station House Officer Anil Kumar (P.W.-7) who recorded the statement of the other accused Pawan, Raj Bahadur, Abhay Pal and Yuvraj on 29.06.2009 in which they confessed their guilt and made a disclosure for getting the crime weapon recovered. On 30.6.2009 the Investigating Officer made an attempt to discover the crime weapons but the same could not be recovered as such on 3^rd July, 2009 all the aforesaid four assailants were taken to the culvert near village Akarwas and on the pointing out of appellant Pawan and Raj Bahadur two dandas were recovered, further at the pointing out of appellant Abhay Pal an axe and at the pointing out of appellant Yuvraj a spade was recovered. On the basis of said recovery, the Investigating Officer got prepared the

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fard recovery marked and proved as Exbt. Ka-19. The aforesaid crime weapons were sent for forensic examination to Vidhi Vigyan Prayogshalaon 19.07.2009 and thereafter the investigation was concluded and charge sheet was submitted against all the appellants on 21.07.2009 vide charge sheet no. 126 of 2009, under Sections 147, 148, 149, 302, 504, 506 IPC which has been marked as Exbt. Ka-20. On the basis of the said charge sheet the learned Magistrate had taken cognizance and committed the case to the Court of Sessions where it was registered as Sessions Trial No. 1028 of 2009 State vs. Pawan & others and thereafter the Sessions Judge made over the case for trial to the Court of Additional Session Judge, Court No. 2, Bulandshahar. The Trial Court on the basis of material collected during the course of investigation and after hearing the prosecution and the accused on the point of charge, framed charges under Section 147, 302 read with Section 149, 504, 506 IPC against appellant Pawan and Raj Bahadur and against Abhay Pal, Yuvraj and Dharam Pal charges under Section 148, 302 read with Section 149, 504, 506 IPC. The charges framed against all the appellants, were read out and explained to them, who did not plead guilty and claimed to be tried.

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In order to bring home the guilt against the appellants, the prosecution examined as many as 8 witnesses. Surendra Kumar Sharma (P.W.-1) is the first informant and eye witness of the incident and Chandra Pal Sharma (PW-2) is son in law of Suraj Pal are witnesses of fact whereas Dinesh Chand (PW-3), Dr. Dinesh Kumar (PW4), S.S.I. Sanjay Kumar Tyagi (PW-5) the first Investigating Officer of the case J.L. Tomar (PW-6) who conducted the inquest. Anil Kumar (PW-7) is the Station House Officer and Second Investigating Officer of the case, Babu Ram Verma (PW-8), who had sent the crime weapon for forensic examination have been produced as formal witnesses.

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The accused-appellants in their statements u/s 313 Cr.P.C. denied the prosecution case and have stated that on account of enmity they have been falsely implicated in the present case.

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Appellant Dharam Pal has taken a plea that he was not present at the time of incident and used to live at Aligarh. Similarly, Yuvraj has taken a plea that at the time of incident he lived at Noida and claimed themselves to be innocents. However, the accused-appellants have not produced any witness in their defence.

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Learned Trial Court after considering the submissions

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advanced by the Public Prosecutor and the learned Counsel for the defence and after scrutinizing the evidence on record both oral as well as documentary convicted the appellants under Sections 147, 148, 302 IPC and awarded aforesaid sentence to them. Hence, this appeal.

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Heard Sri Rahul Misra, learned counsel for the appellants and learned AGA for the State.

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Learned counsel for the appellants has submitted that the genesis of the prosecution story, which led to the incident, is highly unnatural and cannot be believed by a man of ordinary prudence. As per the prosecution story, the victim Ashok alongwith other witnesses had been taken to the village- Akarwas by the appellants Pawan and Raj Bahadur on the pretext of settling the dispute over the joint possession of land between two real brothers at about 10:45 P.M. in the night. The odd hours of the night chosen by the appellants for settling the dispute does not stand to reason at all and creates serious doubt about the genesis of the prosecution story.

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Learned counsel for the appellants has next submitted that as per the prosecution case, the incident is alleged to have taken place at about 10:45 P.M. in the night

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at the doorstep of accused Raj Pal but no source of light has either been mentioned in the first information report or in the statement recorded by the Investigating Officer under Section 161 Cr.P.C. Even the Investigating Officer while preparing the site-plan has not shown the place where the alleged gas lantern is said to have been kept at the time of incident. The source of light in the form of Gas lantern had infact been developed in the statement of the witnesses during the course of trial. Learned counsel for the appellants have further drawn the attention of the Court to the statement of P.W.-5 Sunil Kumar Tyagi the first Investigating Officer who in his statement has categorically stated that at the time of preparing the site plan the first informant had not shown him the place where the gas lantern was kept. Even in the FIR there is no mention of gas lantern at the place of incident and he had neither seen the gas lantern nor made the recovery of the same, it is thus submitted that the source of light at the place of incident is highly doubtful.

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Learned counsel for the appellants has further submitted that the victim/deceased is alleged to have gone with the assailants in order to settle the dispute but at the time of conducting the inquest none of his personal

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belongings are shown to have been recovered though at the time of incident he was Chairman, Land Development Board, Dibai, which again appears to be highly improbable and cannot be believed by any stretch of imagination.

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Learned counsel for the appellants has next submitted that the post-mortem report does not support the prosecution story at all. As per the prosecution case, the victim is said to have been assaulted by Abhay Pal and Yuvraj by axe and Dharampal by a farsa, which are sharp edged and heavy cutting weapons, however, from the careful perusal of the injuries noted by the doctor in the post-mortem report, only one incised wound is found on the right forehead of the deceased, which too is measuring 3.5 c.m. X 0.5 c.m. only and could not in any way be caused by a heavy cutting weapon like kulhari (axe) and farsa which even according to the prosecution own case were weighing 2 ½ k.g. and 2 k.g. respectively and the farsa weighing about 1 k.g. Highlighting the said medical discrepancy, learned counsel for the appellants have vehemently argued that the post-mortem report does not corroborate the eye witness account and creates a serious dent in the prosecution case.

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Learned counsel for the appellants has further submitted that as per the prosecution story, the deceased alongwith other witnesses is said to have gone with the appellants Pawan and Raj Bahadur in a Maruti Van however, there is absolutely no evidence that any altercation took place in the car on way to Surajpal's house in villageAkarwas where the deceased is said to have been done to death.

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Learned counsel for the appellants has further submitted that the prosecution story to the extent that as soon as the victim reached the house of the assailants and came out of the car the assailants without any reason started assaulting him also does not stand to reason and appears to be highly improbable and against normal human conduct and does not inspire confidence.

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Learned counsel for the appellants has further submitted that sanctity of the first information report is also doubtful particularly in view of the fact that the distance of Police Station from the place where the dead body is found, has been mentioned as 5 kilometers south in the first information report whereas in the inquest report the same distance has been

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mentioned as 6 kilometers south. Furthermore, in the first information report sections under which the first information report has been lodged are mentioned as 147, 148, 149, 302, 504, 506 IPC whereas in the inquest report the same is mentioned as 147,148,149,302 IPC only. Moreover, in the inquest report the address of the deceased has been mentioned as Ashok Kumar son of Kedari Lal Sharma, resident of Ghusrana, PS Debai, District Bulandshahar, whereas in the first information report neither the parentage of the deceased nor his address has been mentioned, as such from the aforesaid glaring discrepancies it is clinchingly established that at the time of inquest the first information report was not in existence and the same has been lodged by maling it anti-time.

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Learned Counsel for the appellants has further submitted that even the recovery shown to be made at the pointing out of the appellants is highly doubtful particularly in view of the fact that no public witness has been shown to be witness of the said recovery. Furthermore the independent witnesses of recovery

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shown in the Fard Recovery Memo have not been produced to adduce their evidence during the course of trial. Moreover they are not the resident of the Village from where the recovery is shown to have been made but are infact resident of far-off places. Moreover the recovery memo dated 15.06.2009 has not even been signed by the appellant Dharam Pal which further renders the entire recovery highly doubtful.

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Learned Counsel for the appellants has further submitted that there is no link evidence about the recovered arms kept in safe custody till 19.07.2009. The date on which the recovered articles were sent to the Laboratory for forensic examination further weekens the prosecution case in respect of connecting the crime weapon with that of the incident. Learned Counsel for the appellants has further challenged the place of incident particularly on the ground that though the incident is said to have been taken place in the densely populated locality of the village Akarwas but none of the villagers have reached the place of incident. Moreover, as per the recovery memo dated 14.06.2009 marked as Exhb. Ka-9, no blood stained

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earth is shown to have been recovered from the place of occurrence and only a blood stained piece of brick and plain earth is shown to have been recovered which further creates clouds of doubt about the exact place of incident.

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Learned counsel for the appellants has further submitted that both the witnesses are highly interested and inimical and are said to have accompanied the deceased at the time of incident and have placed the victim in an injured condition in the car, however, neither any blood was found on their clothes nor any blood was recovered from the car by which the victim is said to have been taken to the hospital which again creates serious doubt about the veracity of the prosecution story and renders the eye witness account shaky and unreliable.

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Learned counsel for the appellants has further submitted that Surendera Kumar Sharma (PW-1) is a resident of Mohalla Mahadev (Bhatia Pange), Qasba Debai, District Bulandshahar which is situate at a distance of 6 kilometers from the place of incident but there is no evidence to show as to how he knew the

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appellants prior to the incident as the said factum has neither been mentioned in FIR nor in statement u/s 161 Cr.P.C. As far as Chandra Pal Sharma (PW-2) is concerned he is the real son in-law of Suraj Pal with whom the appellants were having daggers drawn enemity on account of partition of plot which was the bone of contention between the two parties and only on account of being on inimical terms the appellants have been falsely implicated by him in the present case, as such both the witnesses are highly interested and inimical and cannot be relied upon.

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Per contra, the learned A.G.A has submitted that PW-1 and PW-2 are the natural witnesses of the incident and their presence cannot be doubted as they are said to be accompanying the deceased at the time of incident. The medical report also corroborates the prosecution story and the defence has not been able to elicit any material contradictions in their statements, as such they are reliable witnesses and the trial Court by rightly relying upon their testimonies has convicted the appellants and sentenced them. The order passed by the Trial Court is well considered and do not require

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any interference by this Hon'ble Court, hence, the appeal is liable to be dismissed.

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Considering the rival submissions made by the prosecution and the defence it would be useful to evaluate the oral as well as documentary evidences adduced in the light of the submissions made by the prosecution and defence to reach at the just conclusion if the prosecution has been able to prove its case beyond all reasonable doubt against the appellants.

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Learned counsel for the appellant has submitted that as per the prosecution case the appellants Pawan and Raj Bahadur are said to have reached the shop of the first informant on the date of incident at about 8 PM in the night and requested P.W.-1 Surendra Kumar and his brother Ashok who was not even present at the shop at the relevant time and had reached the shop after about one hour of reaching of the accused persons yet had accompanied them to their village Akarwas to settle the dispute over the joint possession of a plot of land. Admittedly, the first informant along with the deceased Ashok Kumar and his other companions reached the Village Akarwas in the odd

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hours of the night at about 10:45 PM and as soon as the deceased alighted from the Car and reached at the doorstep of Rajpal, the appellants Pawan and Raj Bahadur along with their father Rajpal and brothers Abhaipal, Dharmpal and Raj Bahadur suddenly started mercilessly assaulting the deceased by axe, spade and danda causing his death however, the said prosecution story seems to be quite unnatural and unworthy of credence and smacks of the fact that the prosecution is suppressing the real genesis of the case and is not coming out with clean hands. In the backdrop of the aforesaid circumstance and the manner in which the incident is said to have taken place we are of the opinion that the argument of the learned counsel for the appellants has force. In ordinary course of circumstance for settling a petty dispute over the partition of a plot of land between two real brothers one would not go at 10:45 P.M. in the night resulting in the present incident, which clearly suggests that the incident has not taken place in he manner as alleged by the prosecution but in some other manner and the prosecution is suppressing the real genesis of the case.

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The next submission of the learned counsel for the appellants is that source of light being the gas lantern has been introduced subsequently in the statements of the witnesses by the trial Court though the same does not find mention either in the first information report or in the statement under Section 161 CrPC recorded by the Investigating Officer nor in the site plan prepared by the Investigating Officer at the instance of first informant. In the absence of which it is difficult to believe the subsequent statement of the witnesses regarding the source of light at the time of incident which further belies the fact that the witnesses had actually seen the assailants assaulting the deceased at their doorstep and makes their eye witness account doubtful.

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The next submission of the learned counsel for the appellants is that the post-mortem report does not corroborate the prosecution story and renders the eye witness account doubtful. Elaborating his argument, learned counsel for the appellant has submitted that as per the statement of PW-1 and PW-2, the two eye witnesses of the incident, the deceased Ashok Kumar is

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said to have been assaulted by appellants Abhay Pal and Yuvraj by kulhari and Dharmapal by farsa. PW-1 Surendra Kumar in his statement has further categorically stated that the kulhari wielded by appellant Abhay Pal is 2 ½ kg. in weight whereas the kulhari assigned to appellant Yuvraj was also about 2 kg in weight and the farsa is said to be about 1 k.g. in weight. However, from the perusal of the post-mortem report it is evident that only one incised wound is said to have been caused to the victim deceased and that too is of the size of 3.5 x 0.5 cm. which in any manner could not be caused by such heavy cutting weapons. Moreover, PW-2 Chandra Pal Sharma in his statement has categorically stated that aforesaid appellants Abhay Pal, Yuvraj and Dharam Pal each gave two blows to the deceased by their respective weapons however, only one incised wound is found on the person of the deceased which completely contradicts the eye witness account regarding the number of blows given by the appellants as well as the factum of appellants being the author of the said injury. This serious medical contradictions further renders the prosecution story

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doubtful. We find substance in the said argument of the learned counsel for the appellants and in view of glaring discrepancies as pointed out above we are of the opinion that the post-mortem report does not corroborate the eye witness account and shakes the credibility and reliability of the prosecution witnesses.

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The next argument of the learned counsel for the applicant is that the victim/deceased along with the first informant and other witnesses had gone with the accused in their car, however, there is, absolutely no evidence that any altercation took place in the car and immediately on reaching the house of the assailants the deceased alone was attacked by them causing his death. This conduct of the appellants is highly improbable and against the normal human conduct. The said submission of the learned counsel for the appellants also has substance in as much as, the assailants are not stated to have gone in their house to collect their weapons and were armed while sitting in the Car but, did not made any attempt to assault him there however, as soon as they reached the doorstep of their house near the chabutra, they started assaulting

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the deceased with their respective weapons which appears to be highly improbable and unnatural and casts shadow of doubt about the actual manner of incident and makes the prosecution story unreliable.

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The learned counsel for the appellant has next challenged the sanctity of the first information report and its lodging at the time when it is shown to be have lodged. In order to buttress his said argument he has drawn the attention of the Court to the column in the FIR showing the distance between police station and place of incident which is mentioned as 5 kilometers however, in the inquest the said distance is mentioned as 6 kilometers. Furthermore, he has drawn the attention of the Court to the fact that though the FIR of the incident has been registered under Sections 147/148/149/302/504/506 IPC however, while preparing the inquest report, Sections 504 and 506 IPC are found missing. Furthermore, in the FIR there is no mention of the parentage and address of the deceased but in the inquest report, both parentage and address of the deceased has been mentioned. The aforesaid glaring discrepancies clearly suggest that at the time of

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conducting the inquest, first information report was not in existence else the said discrepancies could not have occurred. It is further germane to point out here that when the attention of P.W.-6 Jawahar Lal Tomar, who had conducted the inquest report was drawn to the said discrepancies, he has admitted that in G.D report, the distance between the place of incident and Police Station has been mentioned as five kilometers whereas in the inquest report, it is mentioned as six kilometers. He has further stated that in the inquest report, Sections 504 and 506 IPC has not been mentioned though the same find place in the first information report. Moreover, in the inquest report even the GD report number on which the case was registered at the police station has not been mentioned. In the backdrop of said circumstances and looking to the glaring discrepancies we are of the opinion that the FIR in the present case was not in existence at the time of conducting the inquest and the same has been registered by making it anti-time.

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Learned counsel for the appellants has further submitted that the prosecution has miserably failed to prove the place of incident also in the present case

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which is evident from the circumstances that though the incident has taken place in the dense locality of the village but no independent person of the vicinity has been cited as a witness to corroborate the prosecution story. The place of incident is further doubted from the fact that the Investigating Officer in the Fard Recovery Memo marked and proved as Exbt. Ka-9 has not shown the recovery of any blood stained earth from the place of occurrence and only a piece of blood stained brick and plain earth has been shown to be recovered from the place of occurrence. Under the said circumstances we are of the opinion that the prosecution has not been able to clinchingly establish even the place of incident in the present case which further renders the prosecution story doubtful.

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Learned counsel for the appellants has further submitted that even the recovery of crime weapons shown to be made at the pointing out of the appellants could not be clinchingly established by the prosecution. Elaborating his argument he has pointed out that none of the two independent witnesses Yashpal and Shahid cited as witnesses in the fard recovery memo Ka-11

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has been produced as witness in the court to corroborate the factum of recovery of crime weapon from the alleged place of its recovery. Moreover, the prosecution having failed to exhibit and prove the alleged disclosure statements of the accused made by them after the arrest before the police during the trial and it not being the prosecution case that the disclosure statements of the accused-appellants were not reduced in writing the recovery of the crime weapon pursuant to their disclosure statements is inadmissible under Section 27 of the Evidence Act. He has further submitted that there is no link to show that the recovered arms were kept in safe custody till 21.07.2009, on which date the recovered articles were sent to Forensic Science Laboratory for forensic examination. In the absence of the aforesaid link evidence, the recovery of crime weapon shown to be made at the pointing out of the appellant does not inspire confidence which further creates serious dent in the prosecution story and makes it unreliable. In the backdrop of the aforesaid facts and circumstances particularly the missing link in connecting the crime

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weapon with that of the incident, further shakes the credibility and veracity of the prosecution case.

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Learned counsel for the appellants has further submitted that the credibility and truthfulness of testimony of P.W.-1 and P.W.-2 is further doubted from the circumstance that P.W.-1 is the resident of MohallaMahadeo Bhatia Penja which is at a distance of 6 kilometers from the house of accused appellants, however neither in the FIR nor in his statement under Section 161 Cr.P.C, he has stated that the appellants were earlier known to him. Even PW-5 Sanjay Kumar Tyagi Investigating Officer in his testimony before trial Court has categorically stated:- eq>s lqjsUnz dqekj us ;g ugha crk;k Fkk fd og vfHk;qDrx.k jktiky 'kekZ] vHk;iky] /keZiky] ;qojkt] iou] jktcgknqj dks ?kVuk ls igys ugha tkurk FkkA eq>s bl xokg us ;g Hkh ugha crk;k Fkk fd gksiysl gksus ds dkj.k o tYnckth ds dkj.k rgjhjh fjiksVZ esa mDr ckr fy[kkus dh otg ugha crkbZ FkhA This factum again creates doubt about the true nomination of the appellants in the present case and it appears that on the basis of suspicion the appellants have been falsely nominated and as such PW-1 cannot be said to be a wholly reliable witness

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particularly, in view of the above discrepancies pointed out in his statement. So far as PW-2 Chandra Pal is concerned he is an inimical witness as the dispute between his father in-law Surajpal and the appellants over the partition of plot has been pending since long and he in order to settle personal scores has falsely implicated the appellants in present case. Being an inimical witness implicit reliance cannot be placed on his testimony so as to record the conviction against the appellant, particularly in the backdrop of the serious medical contradictions found in the post-mortem. Moreover, the factum of absence of source of light at the time of incident and appellant no. 1 not being able to establish that he knew the accused-appellants earlier and considering the enmity between the witnesses their testimony cannot be said to be of unimpeachable character and does not stand the test of close scrutiny as such cannot be implicitly relied upon.

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In view of the foregoing discussion, we are of the opinion that the prosecution has not been able to prove its case beyond all reasonable doubt against the appellants as such they are liable to be acquitted of all

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the charges framed against them by allowing the appeal.

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The appeal is accordingly allowed. The order of conviction and sentence passed by the trial court is set aside. The appellants are on bail. They need not be surrender their bail bonds and sureties stands discharged.

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A copy of the judgement along with trial court record be sent to Sessions Judge, Bulandshahr/ C.J.M, Bulandshahr for necessary compliance.

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Judgment be certified and placed on record.

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Order Date :- 28.5.2018 KU

Abhay Pal and Others v. State of U.P.

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Abhay Pal and Others v. State of U.P.

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