The Allahabad High Court has acquitted two accused who were in jail in a murder case that took place ten years ago.
The Court observed that the trial court has fallen into grave error in believing the testimony of witnesses because it is well proved that they were not the eye-witness. The trial court has not taken into consideration that material contradictions in their testimony and these contradictions are so major that they go to the very root of the prosecution case and shatter it.
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Ajai Tyagi passed this order while hearing two Criminal Appeals filed by Rajnesh and Vijay Pal.
These two criminal appeals have been preferred by the appellants against the order dated 30.05.2018, passed by Additional Sessions Judge, Badaun, arising out of Case under Sections 147, 148, 302/149 and 323/149 IPC, Police Station- Rajpura, DistrictSambhal, whereby learned trial court convicted accused appellants Rajnesh and Vijay Pal under Section 302 r/w Section 34 IPC and sentenced each with life imprisonment and fine of Rs 10,000/- and six months simple imprisonment in case of default of fine.
Trial court also convicted them under Section 323 r/w Section 34 IPC and sentenced each six months R.I and fine of Rs 500/- and 15 days simple imprisonment in case of default of fine. The trial court acquitted all the other accused persons from all the charges framed against them and also acquitted accused appellant Vijay Pal of the charge under Section 25 of Arms Act.
The facts of the case as culled out from the record are that a written report is submitted by informant Anek Pal at police station- Rajpura, District- Bhimnagar (Sambhal) with the averments that the in-laws’ house of his brother Gauri Shankar is in Jetpura in the family of Ram Bhoop and the in-laws’ house of accused Vijay Pal is also in the same village in the family of Kalyan. There is a dispute going on between the families of in-laws of Gauri Shankar and Vijay Pal. His brother had gone to his in-laws’ house to diffuse the dispute. Accused Vijay Pal and his in-laws took it as their insult and started a silent enmity with them.
Further averment is that that on 12.07.2012 at about 5:00 pm, the Rajnesh brother-inlaw of accused Vijay Pal, Vijay Pal, Hari Shankar, Sher Pal, Raj Pal, Ram Khiladi and Mahesh, armed with weapons, came to the house of his brother Gauri Shankar and called him. His nephew Rama Shankar @ Pappu came out of the house. All the aforementioned accused persons got him and started beating with lathi and danda.
On his hue and cry, his brother Gauri Shankar came out of the house then all the accused got Gauri Shankar and said to kill him. Then Rajnesh caught hold of Gauri Shankar and Vijay Pal triggered a fire in the head of Gauri Shankar, who fell on the ground and died. Accused persons after seeing them fled away from the spot stating that if anybody gave the evidence he would be killed.
On the basis of aforesaid written report, a first information report was registered at Police StationRajpura, District- Bhimnagar as Case under Sections 147, 148, 149, 302, 323 and 506 IPC.
The trial court after hearing the arguments of both the sides acquitted all the accused persons of all the charges except appellants Rajnesh and Vijay Pal, who were convicted and sentenced u/s 302 r/w Section 34 of IPC and Section 323 r/w Section 34 of IPC. The Appellant Vijay Pal was acquitted of the charge u/s 25 Arms Act also. Hence, this appeal.
Counsel for the appellants first of all submitted that appellants were having no motive to commit the offence as charged by prosecution.
She submitted that as per prosecution case, the in-laws’ house of deceased brother Gauri Shankar and in-laws’ house of Vijay Pal are in the same village, where both the family members of their in-laws were having enmity with each other. It is also a case of prosecution that Gauri Shankar had gone to his in-laws’ house to diffuse the enmity but this cannot be the motive to commit a brutal murder.
Counsel also referred to the statement of Anek Pal, where he has stated in his cross-examination that there was no enmity between them and the accused. Hence, there was no motive with the appellants to commit the murder of deceased Gauri Shankar. Hence, the motive set up by the prosecution is absolutely unbelievable.
AGA opposed the submissions made by the counsel for the appellants and contended that this is a day light occurrence and there are three eye-witnesses. There is no material contradiction in the evidence of eye-witnesses. Moreover, as per ante mortem injury in post mortem report, there is one gunshot entry wound on the left side of the face of the deceased and exit wound in the right side of the head. Prosecution case is also a case of single fire in the head of the deceased. Hence, ocular evidence is very well corroborated by the medical evidence.
AGA further contended that if recovery of weapon is not proved then it cannot be concluded that appellants have not committed murder of the deceased because it is not necessary to find out the weapon in each case. All the three eye-witnesses are residents of the neighborhood. Hence, their presence on the spot cannot be doubted. The trial court has rightly convicted and sentenced both the appellants. Hence, there is no illegality in the impugned judgement which requires any interference by the Court.
The Court noted that,
The High Court in the cases, relied on by counsel for the appellants, namely, Prem and others (supra) and Ram Subhag and another (supra) has held that mere consistency in the testimony of the prosecution witnesses is not the sole test of truth as even falsehood can be given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. Therefore, what the court has to look at, and assess, is whether the prosecution evidence coupled with the surrounding circumstances has a ring of truth or there arises a strong suspicion and high probability of false implication of the accused put on trial.
The prosecution has produced three eye-witnesses and the presence of all these eye-witnesses is very much doubtful rather it is proved that they were not present at the place of occurrence and have not seen any incident as alleged by prosecution, there emerges strong suspicion and high probability of false implication of the accused-appellants on the basis of enmity between the families of in-laws of deceased and appellant Vijay Pal.
“Hence, we are of the considered view that the trial court did not appreciate the evidence in the right perspective and misread it. Appellants- Vijay and Rajnesh are wrongly convicted by trial court under Section 302 r/w Section 34 IPC and Section 323 r/w Section 34 IPC. Hence, we upturn the finding of the trial court convicting the appellants and the appeal is liable to be allowed”, the Court observed while allowing the appeals.
“Impugned judgement is set aside. Conviction and sentence of both the appellants under Section 302 r/w Section 34 IPC and Section 323 r/w Section 34 IPC is hereby set aside and appellants are acquitted of the aforesaid charges”, the Court ordered.