Giving benefit of doubt to the accused of killing 13-year-old Kunwar Bharat in the middle of the night with a bomb, the Allahabad High Court has cancelled the life sentence and all the accused have been acquitted.
The Division Bench of Justice Arvind Kumar Mishra-I and Justice Mayank Kumar Jain passed this order, while hearing a Criminal Appeal filed by Bhagwat and Others.
The criminal appeal has been preferred by the appellants against the order of sentence dated 30.03.1984 passed by Khem Singh, the then 6th Additional Sessions Judge, Azamgarh in Sessions Trial arising out of Case under Sections 302/34 IPC, Police Station Kotwali District Azamgarh whereby appellants-accused Bhagwat, Sahab, Lalloo, and Kamta were convicted under Section 302 read with Section 34 of IPC and sentenced to undergo life imprisonment.
Facts giving rise to the prosecution case are that Phool Chand submitted a written report to Inspector Kotwali, District Azamgarh on 28.10.1979, wherein it was stated that he along with his son Kunwar Bharat was sleeping in the Verandah adjacent to his ‘Baithak’ on 27.10.1979.
At around 12:00 midnight, 10 to 15 persons came suddenly from the western lane flashing their torches. He heard the sounds “YahiYahi”. He identified the accused Bhagwat, Sahab, Lallu, and Kamta among them. Apprehending danger, he ran towards his house. His son rushed towards his other house situated on the eastern side of his Baithak.
Later, he also rushed toward the direction where his son had gone. He had a ‘danda’ in his hand. He shouted while approaching his son. He heard three sounds and later found that his son had died. His wife and sister-inlaw (‘Bhabhi’) had already come out. When he reached, he found that his wife was crying and saying that Bhagwat had killed her son with a bomb. At that time, his bhabhi Chandradeiya, his wife Jagpatiya, and Hardev were present on the spot.
On the basis of the written report, the first information report was registered with Police Station Kotwali, Azamgarh as Case naming the appellants as accused persons.
After the conclusion of the investigation, a charge sheet came to be filed against appellants under Section 302 /34 of IPC.
Thereafter, the case was committed to the Court of Session where it was registered as Session Trial. Charges under Section 302/34 IPC were framed against the accused-appellants. The accused appellants pleaded not guilty and claimed to be tried.
After the close of prosecution evidence, statements of the appellants-accused were recorded under Section 313 of CrPC, in which they denied the commission of the crime and their presence at the house of the complainant at the time of the incident. They have also denied committing the murder of Kunwar Bharat. They alleged that the Investigating Officer filed a false charge sheet against them. They had been implicated due to village enmity and hence the witnesses deposed against them.
Hearing both the parties and after vetting the evidence and facts and circumstances of the case, the trial court recorded conviction and passed the sentence against the appellants as aforesaid.
Being aggrieved by the impugned order of sentence the accused-appellants have preferred the criminal appeal.
Counsel for the appellants argued that the complainant Phool Chand is not the eyewitness of the occurrence and he had not seen any of the appellants committing the murder of his son. The witness Hardev, who is said to be present at the time of occurrence, has not supported the prosecution story during his deposition. There are material improvements in the evidence of the complainant and against the facts mentioned in the First information report. There are material contradictions and discrepancies in the oral evidence of Phool Chand, Chandradeiya and Jagpatiya. The medical evidence also does not corroborate the prosecution story. The FIR is also silent about so many facts narrated by the witnesses in their evidence.
It is alleged by the prosecution that the deceased was sleeping in the Verandah, but none of the appellants, as alleged, approached him or caused any damage to him. If there would have been an intention to commit the murder of Kunwar Bharat, some immediate injury would have been caused to him at that time.
As per the prosecution story, at the time of throwing the bomb, other persons were also standing there but none of them had suffered any kind of injury. No motive has been assigned to the appellants to commit the murder of Kunwar Bharat. The manner of assault as deposed by the witnesses of fact does not prove the prosecution story. The evidence of witnesses of fact is not reliable and it is full of material contradictions with each other.
None of the appellants suffered any kind of injury while it is a case of the prosecution that the bomb was thrown upon the deceased from close proximity. No motive was available to the appellants to commit the murder of Kunwar Bharat since there was no enmity with him. The appellants have falsely been implicated. There was no source of light at the time of occurrence and it is not possible to identify the appellants, in the light of the torch by the witnesses. The torches were not taken into possession by the investigating officer during the investigation. The trial Court has not rightfully appreciated the evidence and has ignored important aspects of the case. The Investigating Officer has been examined as a Court witness which was beyond the jurisdiction of the trial Court.
The prosecution has utterly failed to prove the charge against the appellants. The appellants are liable to be acquitted and the appeal deserves to be allowed.
Per contra, AGA argued that the first information report of the matter was promptly registered at 02.10 am while the incident took place at around 12:30 am. The appellants were identified by the witnesses in the light of the torches which they were having at the time of occurrence.
The witnesses of fact have corroborated the prosecution version and if there are minor contradictions or discrepancies which do not adversely affect the case of the prosecution, they are to be ignored. The medical evidence is consistent with the prosecution story. Kunwar Bharat, a boy of 13 years of age was brutally murdered by the appellants by throwing a bomb at him.
The presence of the appellants on the spot is proved by the witnesses of fact. The investigation of the case was fairly conducted by the Investigating Officer and based on evidence collected during the investigation, a charge sheet was filed against the appellants. The appellants have rightly been convicted and sentenced by the trial court.
The judgement of the trial court was passed after appreciating the evidence available on record rightfully. The prosecution has succeeded to bring home the charge against the appellants. Thus, the appeal is liable to be dismissed.
Given the above facts, the Court observed that there was not sufficient source of light during the entire sequence of events right from the house of the complainant where he was sleeping when the accused-appellant came to the place of occurrence where Kunwar Bharat was alleged to be killed by Bhagwat by throwing a bomb at his face.
On account of this, the prosecution has utterly failed to establish that the accused-appellants were identified by the informant and Chandradeiya and also that Chandradeiya and Jagapatiya are the eyewitnesses in the absence of a light source at the place of occurrence.
“On the basis of the above discussion and appreciation of documentary and oral evidence available on record, we conclude that the prosecution has failed to bring home the charge u/s 302/34 IPC against the appellants.
Material contradictions in the evidence of the witnesses of the fact render the theory of the prosecution to be doubtful. Accused appellant had no motive to kill Kunwar Bharat. The identification of the appellant is not established by cogent evidence. The witnesses have made material improvements and embellishments in their testimonies.
The evidence of witnesses Phool Chand, Chandradeiya, and Jagpatiya on reading as a whole does not inspire confidence and does not have any ring of truth. Appreciation of oral evidence of witnesses of fact raises doubt about the commission of the crime by the appellants. The Trial Court has not appreciated the evidence available on record in a rightful manner and hence, wrongly convicted the appellants.
The appellants are entitled to the benefit of the doubt since the prosecution has failed to prove charges against the appellants beyond the reasonable doubt. Thus the appeal is liable to be allowed”, the Court observed while allowing the appeal.
“The Judgement of conviction and order of sentence passed by the trial court is hereby set aside. Appellants are hereby acquitted from the charges’, the Court ordered.