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Allahabad High Court dismisses appeal against acquittal in attempt to murder case

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The Allahabad High Court has dismissed an appeal challenging the acquittal order of the trial court in an attempt to murder case.

The Division Bench of Justice Vivek Kumar Birla and Justice Subhash Vidyarthi passed this order, while hearing a Criminal Appeal filed by one Nokhe Lal.

By means of the appeal under Section 372 of the Criminal Procedure Code, the informant-appellant has challenged the order dated October 1, 2014 passed by Additional Sessions Judge in dacoity-affected area of Mahoba in Special Case under Sections 387, 307/34, 452, 323/34 and 427 IPC, Police Station Kabrai, District Mahoba, whereby both the accused have been acquitted, giving them the benefit of doubt.

The facts of the case are that the informant appellant gave a report in the concerned Police Station on May 11, 2004 at 20:45 hours stating that on the same day at about 4:00 p.m., when he was coming to Kabrai from his home, the accused-respondent No 3 (Dhirendra Singh) blocked the passage by parking his motorcycle in front of Jagdish’s house, where the passage is narrow. The informant was going on his motorcycle and he stopped there.

Dhanni, Rajju, Hariram Prajapati and Dhirendra Singh caught hold of the informant and made him sit there and they assaulted the informant by gun, kicks and fists and said that they will set him free only when he pays Rs 10,000. They threatened to kill him with a gun and country made pistols. Upon finding an opportunity, the informant ran towards his home and Dhanni fired towards the informant with a 315 bore country made pistol with the intention to kill him.

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However, the shot missed the informant’s temple and he had a narrow escape. The informant ran and entered the house of Prakash and the aforesaid people attempted to get the door of the house opened. Thereafter, they entered the informant’s house and assaulted the informant’s mother Achchhi Devi and sister Sudha with kicks, fists and shoes and destroyed the house-hold goods namely deg (a utensil), CD, TV, Battery and other goods of his shop, which resulted in a loss of about Rs 5,000. The accused threatened that if the informant makes a report of it, it will not be good for him. The incident was witnessed by Shaukilal, Bhawanideen and Deshraj Pradhan and they saved him.

Informant-appellant Nokhe Lal stated that the Sub Inspector visited his home on the following day and saw the broken goods. He prepared a list and gave the goods in the custody of his father. He produced the broken goods, namely, a stabilizer, a CD player and a table fan, a tin box, picture tube of a TV etc. before the Court and said that those were the goods which had been broken by the accused-persons. He and his mother have been medically examined in the Government Hospital at Mahoba.

The Court below noted that Informant-appellant Nokhe Lal, his mother and sister respectively who belong to the same family and are interested witnesses and, therefore, their evidence is to be scrutinised very carefully. The informant-appellant has alleged in the report that the accused-respondents threatened him against lodging a report but in his evidence Nokhe Lal has stated that he went alone immediately afterwards to lodge the report. The conduct of Nokhe Lal in going alone to lodge FIR immediately after having been threatened by the accused appears to be unnatural. Nokhe Lal has alleged that the accused had hit him with a gun, stick and kicks but the same did not leave marks or cause bleeding. The accused had not hit him hard but had hit him slowly.

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Dr Mahendra Singh Katiyar, who conducted a medical examination of Nokhe Lal, did not find any injury on him, which makes the prosecution case as well as veracity of the evidence of Nokhe Lal and mother of the informant doubtful.

Informant-appellant Nokhe Lal has stated that the medical examination of his sister was also conducted on the same day, whereas the sister Smt Sudha has stated that she was not medically examined. No report of Smt Sudha is available on record and no statement in this regard has been made by Dr Mahendra Singh Katiyar. From this prosecution witnesses appear not to be trustworthy.

Informant-appellant has alleged that Dhanni (co-accused) fired with a 315 bore country made pistol. Neither there is any witness of this incident nor was any empty cartridge recovered from the spot which could prove the informant’s averment.

From this analysis of the aforesaid facts, the Court below passed the order dated October 1, 2011 acquitted the accused persons from all the charges.

The appellant-informant has challenged the aforesaid order on the ground that the prosecution witnesses have proved the prosecution story but the evidence adduced from the complainant/informant’s side was not considered by the Court below.

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The Court held that, A perusal of the order dated October 01, 2014 indicates that the Court below has thoroughly examined the statements of all the prosecution witnesses. It is settled law that when witnesses are related persons, although their testimony is admissible and form the basis of conviction of the accused-persons, the testimony of an interested witness has to be examined with extra care and caution.

Upon scrutiny of the statements of the prosecution witnesses serious discrepancies have come to light. Informant-appellant Nokhe Lal has stated that he had gone to the Police Station alone, however Smt Achchhi Devi stated that her daughter had also gone to the Police Station. GD mentions that the informant came with Smt Achchhi Devi.

Thus the version of Nokhe Lal, Smt Achchhi Devi and the narration in the GD, all contradict each other, which indicates that entries in the GD have been concocted.

This finding of the Court below is based on a thorough and proper analysis of the prosecution evidence. The finding arrived at after a thorough analysis of the entire admissible evidence placed on record cannot at all be termed as perverse, the Court said.

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“A perusal of the grounds taken in the memo of appeal indicates that the order of the Court below has not been assailed on the ground that it is perverse. During the submission also, the Amicus Curiae could not demonstrate that the findings of the Court below are perverse.

“In these circumstances, in view of the law laid down by the Supreme Court in the case of Jayamma (supra), we find that the appellant has failed to make out any ground for admission of the appeal”

-the Court observed, while dismissing the appeal.

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