of U.P. Vs. Shiv Kumar & Ors  Insc
264 (20 April 2005)
Singh & Arun Kumar B.P.Singh, J.
appeals have been preferred by the State of Uttar Pradesh against the judgment and order of the High Court of
Judicature at Allahabad in Criminal Appeal No.1761 of 1980
dated 19.3.1999. By its impugned judgment and order, the High Court allowed the
appeal preferred by the respondents and acquitted them of the charge under
Section 302 read with Section 34 IPC. Earlier, the respondents were tried by
the IV Addl.Sessions Judge, Fatehpur in Session Trial No.172/80, who by
judgment and order dated 12th
August, 1980 convicted
them of the offence under Section 302 read with Section 34 IPC and sentenced
them to imprisonment for life.
case of the prosecution is that on 26.2.1980, Rudrapal Pandey (deceased)
requested his nephew Ram Bahadur (PW-1) to take his wife Smt.Shyampati to
village Haswa from where they were to board a bus to Fatehpur. They proposed to
go to Fatehpur to consult a doctor since the said Smt. Shyampati was suffering
from headache etc. The case of the prosecution is that Ram Bahadur (PW-1) along
with his aunt proceeded towards village Haswa.
the deceased Rudrapal Pandey followed them. According to the prosecution, while
proceeding towards village Haswa, the deceased Rudrapal Pandey requested Daulat
Singh (PW-2) to accompany him. When they reached near village Aswan Baxpur, all
the respondents came armed with firearms and surrounded the deceased. The
respondent Shiv Kumar was armed with a gun while the remaining three were armed
with pistols. The respondents Shiv Kumar and Amar Singh fired one shot each
from their gun and pistol respectively. Though the deceased attempted to run
away, he was prevented by respondents Ram Lakhan and Ram Kumar from doing so by
pushing him in the canal. Thereafter, Ram Lakhan and Ram Kumar fired one shot
each from their pistols. The accused thereafter ran away and an alarm was
raised by Ram Bahadur.
motive suggested by the prosecution was that one Barjor Singh, uncle of the
respondent Shiv Kumar, had been murdered and in that case Daulat Singh (PW-2)
and his nephew Surajbali were the accused. In that case, the deceased Rudrapal Pandey
was doing parvi on behalf of Daulat Singh (PW-2).
was the enmity which resulted in the murder of Rudrapal Pandey.
Trial Court relying upon the testimony of PW-1 (Ram Bahadur) and PW-2 (Daulat
Singh) convicted the respondents. The High Court has found their evidence to be
unreliable and has, therefore, acquitted the respondents.
as Ram Bahadur (PW-1) is concerned, the specific allegation made by him was
that the respondent Shiv Kumar fired at the deceased from his gun hitting him
on his back, meaning thereby that he fired at the deceased from behind. The
medical evidence is to the effect that on the back of the deceased, there was
only an exit wound and there was no entry wound on the back of the deceased.
Apparently, the alleged eye witness Ram Bahadur (PW-1) had not seen the actual
occurrence and on finding an injury on the back of the deceased, he stated that
the gun shot fired by the respondent Shiv Kumar hit the deceased on his back.
It also appears from the record that though all the four respondents were said
to have fired from their weapons, only two wounds of entry were found on the
chest of the deceased. So far as the witness Daulat Singh (PW-2) is concerned,
the High Court doubted his presence because if he had been present on the spot,
the respondents would not have spared him. This was because he was the person
who is said to have committed the murder of the uncle of respondent Shiv Kumar.
The deceased Rudrapal Pandey was only his pairokar. The evidence on record
disclosed that he was standing five to six paces away from the deceased. The
evidence on record also discloses that there was no obstruction between Daulat
Singh (PW-2) and the respondents which may have prevented the respondents from
firing at him. PW-1 (Ram Bahadur) does not say that Daulat Singh (PW-2) was
with his uncle when he left his house. Daulat Singh (PW-2) has deposed that
while going to village Haswa, the deceased had requested him to accompany him.
was no other reason for Daulat Singh (PW-2) to accompany the deceased on the
fateful day. The High Court has further noticed that Smt. Shyampati was not
even examined as a witness. The case of the respondents is that the whole story
about Smt. Shyampati and PW-1 (Ram Bahadur) going to village Haswa is false and
that neither of them were present when the incident took place. The failure of
the prosecution to examine Smt. Shyampati at the trial was another circumstance
which supported the prosecution case.
considered the entire evidence before us, we are also not satisfied about the
truthfulness of these two witnesses and their evidence leaves an element of
doubt in our mind. The High Court has given to the respondents the benefit of
doubt. We find no reason to disturb the finding recorded by the High Court.
find no merit in these appeals and the same are accordingly dismissed.