Citation: Criminal Appeal No. – 2899 of 2003
Coram: Hon’ble Ashwani Kumar Mishra & Hon’ble Syed Aftab Husain Rizvi
Decided on: 08.11.2023
Introduction:
The present appeals have been filed on behalf of accused-appellants- Arvind Kumar, Surjeet, and Babloo, who have been convicted by judgment and order dated 30.05.2003 passed by Additional Sessions Judge/ F.T.C. First, Jalaun in Session Trial No.77 of 2000 (State of U.P. vs. Arvind Kumar and others) arising out of Case Crime No.337 of 1999, under Sections 376(2)(g) and 302/34 I.P.C., Police Station- Kuthond, District- Jalaun and sentenced the appellants to 10 years rigorous imprisonment & fine of Rs.5000/- under Section 376(2)(g) and life imprisonment & fine of Rs.5000/- under Section 302/34 I.P.C.
Facts:
The F.I.R. of this case was lodged on 30.11.1999 at 19:45 P.M., under Section 376/302 I.P.C. against Surjeet, Arvind Kumar, Babloo, and Raj Kishore on the written information alleging therein that on 30.11.1999, the 13-year-old daughter of informant had gone to collect the grass with Ram Prasad, Babu, and Pramod Kumar. At about 5 P.M., the informant came near the Arhar field of Brij Bhushan Tiwari to collect the grass cut by his father where he heard the screams of his daughter from the Arhar field.
On hearing the screams, the informant, his father, Babu, and Pramod Kumar entered the Arhar field. They saw Surjeet, Arvind, Babloo and Raj Kishore were strangulating her daughter by tying her neck with a bed-sheet. On exhortation, the accused ran away. When the informant reached near the victim, she had died. The accused have also committed sexual assault on her because her private part was bleeding and semen spots were present on the clothes. On hearing the noise, several villagers came to the spot. The informant leaving his family members and other villagers beside the dead body, came to the police station to lodge the F.I.R.
The informant P.W.-1, in his examination-in-chief has stated that Surjeet, Babloo, Arvind Kumar, and Raj Kishore who live in his village Panditpur, sexually assaulted her 13-year-old daughter and committed her murder. The incident occurred in the Arhar field of Brij Bhushan Tiwari.
Babu P.W.-2 has not supported the prosecution case. The witness has stated that he knows the daughter of the informant and the accused. The daughter of the informant is not alive. He does not know what incident had occurred with her and how she died. Witness has denied that accused persons sexually assaulted the victim and committed her murder. The witness has been declared hostile. Witness in his cross-examination by the defence has stated that Munni Devi, the wife of Raj Bahadur has died on the date of the incident. Her last rites were performed at about 4 P.M. Babloo, Arvind and Surjeet were present in the last rites of Munni Devi.
Another evidence produced by the prosecution is recovery of slipper of right foot of accused Raj Kishore, on his pointing out from the field of Brij Bhushan Tiwari. According to prosecution the other slipper of the left foot, however, was found on the spot by the Investigating Officer during spot inspection.
Court’s Analysis Judgement:
From the analysis of evidence on record, it is clear that the sole testimony of informant P.W.-1, who is a chance witness, is not inspiring and trustworthy. There are serious discrepancies, which makes it highly doubtful that he has seen the occurrence. No doubt that the victim has been sexually assaulted and was strangled to death but it is not proved that appellants accused are the real culprits and they have committed the offence. Their false implication on the basis of suspicion or with ulterior motive cannot be ruled out. There is no sufficient evidence on record to prove the prosecution case beyond reasonable doubt.
The learned trial Court had failed to notice the serious discrepancies in the ocular testimony of informant P.W.-1, who is also a chance witness and has erred in relying on it. The finding of guilt returned by the trial Court on the basis of his testimony is not sustainable.
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Written by- Sushant Kumar Sharma
