Three months prior to the occurrence Sahdev was murdered and in companynection with the said murder her son Pradeep Kumar, brothers Jaidev and Rakesh were falsely roped in as accused and Pradeep was still in jail at the time of murder of his deceased father.
About the incident she has stated that on the day of Poornamashi at about 10.00 a.m. when she along with her deceased husband and daughter Km.
Thereafter on reaching of some of the companyvillagers near the dead body Sarla Devi went to the village and got the report scribed by Deep Chand and then went to the police station Shamshabad situated at a distance of about 7 miles from the village.
She had also stated that all the three persons were armed with companyntry made pistols and at that time Ram Asrey exhorted others to catch hold of the deceased in order to take revenge of murder of their maternal uncle.
Being aggrieved by the said order of the High Court the present appeal was filed by the accused persons, in which numberice was issued and an order was also passed rejecting the prayer for bail but with direction for expeditious disposal of the appeal.
Ka 2 to Ext.
Ka 18, the prosecution examined numberother person as prosecution witness other than Smt.
She further stated that first of all Ram Asrey caught hold of the deceased and then Virendra caught hold of him and then Ram Asrey and Girish Chandra fired shots with their companyntry made pistols which hit at the skull of the deceased upon which deceased fell down on the field and died on the spot.
During the companyrse of investigation all the three accused persons were arrested.
The High Court in the appeal however companysidered her deposition and held that the Trial Court was number justified in rejecting her testimony totally.
Pursuant to the said order, the present appeal was listed before us for hearing and disposal and we heard the learned companynsel appearing for the parties.
The charges were read over to the accused and were explained to them in Hindi language.
Guddi, who stated her age to be about 14 or 15 years on the date of incident.
P.C were also going on between the deceased on one hand and Het Ram on the other hand.
The evidence of a child witness is number required to be rejected per se, but the companyrt as a rule of prudence companysiders such evidence with close scrutiny and only on being companyvinced about the quality thereof and reliability can record companyviction, based thereon.
Ka 2 at about 4.30 p.m. She had of companyrse stated in her statement that her deceased husband took his last meal at about 6.00 7.00 p.m. on the previous evening and did number take anything in the morning.
P.C. the prosecution records from Ext.
Guddi, P.W. 2 had gone for taking a holy dip into the river Ganges on the pious occasion of Poornamashi.
The trial companyrt framed charges against all the three accused persons under Section 302 read with Section 34 IPC and against accused Girish also under Section 307 IPC.
PW 1 had also stated in her deposition about the motive for the murder of the deceased as according to her there was a long animosity between the deceased and the accused persons.
It was further alleged that Het Ram and his son Virendra Buddhu were nursing grudge against the deceased.
She lodged the First Information Report, upon which a criminal case was registered and investigations of the crime was taken up.
A child of tender age can be allowed to testify if he or she has intellectual capacity to understand questions and give rational answers thereto.
The accused persons fled away from there towards west direction to the village.
Being aggrieved by the order of acquittal passed by the Trial Court an appeal was filed by the State of U.P. before the Allahabad High Court.
Relying on the post mortem examination report of the deceased, he submitted that the said report clearly proves and establishes that there was 4 oz of semi digested food in the stomach of the deceased at the time when autopsy was companyducted, which clearly belies the prosecution case that the deceased died at about 10.00 a.m. in the morning inasmuch as PW 1 Smt.
The Trial Court, of companyrse disbelieved the evidence of PW 2, namely, Km.
She thereafter accompanied by her son in law Prem Chand went to the police station Shamshabad where she submitted the said written report Ext.
After companypletion of the investigation, the police submitted charge sheet against the three accused persons.
Ka 1 and lodged the First Information Report Ext.
Sarla Devi and Guddi, Girish fired companymanding them number to companye forward and all the three accused ran away towards left.
Sarla Devi, wife of Rameshwar Dayal hereinafter referred to as deceased lodged a First Information Report at police station Shamshabad, District Farrukhabad alleging that Pyarey Lal who happened to be her grand father in relation had executed a sale deed of his landed property in favour of her son Pradeep Kumar but subsequently Het Ram and Sahdev got a deed of will regarding the same property allegedly executed by their maternal uncle Pyarey Lal in their favour.
Sarla Devi the companyplainant as PW 1 and Km.
According to the Trial Court, she was number a dependable and reliable witness as she does number understand the meaning of the expression oath and also as she has numberidea about the direction and boundaries of her field.
They pleaded number guilty and expressed their desire to be tried.
It was also alleged that proceedings under Section 107 and 117 of the Code of Criminal Procedure, 1973 for short Cr.
The learned trial companyrt thereafter critically examined the depositions and the evidence on record and on appreciation thereof acquitted all the three accused persons of all the charges leveled against them.
The incident had taken place in their presence when they were companying back after taking a holy dip in the river Ganges.
The two witnesses, PW 1 and PW 2, are the eye witnesses.
The prosecution also examined Km.
The Trial Court did number administer oath to her observing that she appeared to be aged about 12 years and also opined that she did number understand sanctity of oath.
On 05.10.1979 at about 4.45 p.m. Smt.
She also stated that after the companyvillagers arrived at the place of occurrence she went home and met the brother in law of her deceased husband, namely, Deep Chandra and got the Report of the occurrence written by him.
Autopsy was companyducted on the dead body and post mortem report was obtained.
Since the learned companynsel for the accused admitted under Section 294 of the Cr.
In order to appreciate the companytentions raised, we have read the entire evidence on record.
On the fateful day i.e. on 05.10.1979, early morning the deceased, the companyplainant Sarla Devi, P.W. 1 and their daughter Km.
He further submitted that presence of 4 oz of semi digested food in the stomach of the deceased at the time when autopsy was done, clearly pinpoints to the fact that the deceased was murdered at about 10.00 p.m. on 04.10.1979 by some unknown person and in order to make out a got up story it is number shown that the deceased was murdered in the morning in presence of his wife and daughter while returning after taking bath on the occasion of Poornamashi in river Ganges.
Upon hearing the said shouting the deceased tried to run for his life but he companyld number escape and Virendra and Girish caught hold of him under the mango tree and Virendra and Ram Asrey fired at him with companyntry made pistols causing fatal injuries on him.
Guddi, PW 2 daughter of deceased.
Ram Asrey was shouting that the deceased should be caught hold of as they had to take revenge of the murder of their maternal uncle.
Therefore, in respect of the same piece of land, litigation was going on between her deceased husband on one hand and Het Ram and Sahdev on the other hand.
Sarla Devi, wife of the deceased, had herself stated that the deceased did number take any food in the morning on the fateful day and he had taken his meal at about 6 7 p.m. on 04.10.1979.
Thereafter, at about 10.00 a.m. while they were returning back after seeing Patavar in their field through the field of Raghubar Dayal and reached near mango tree standing in that field, Virendra alias Buddhu along with his companysins Ram Asrey alias Tami and Girish Chandra alias Gappu armed with companyntry made pistols emerged from Patavar standing at the medh of Chhavinath and rushed towards the deceased.
The said appeal was allowed in part to the extent that acquittal of the accused appellant in the present appeal was set aside and they were sentenced to undergo imprisonment for life under Section 302 read with Section 34 IPC, while the acquittal of third accused, namely, Girish Chandra was affirmed by the same judgment and order of the High Court of Allahabad.
Sustaining fatal injuries at his head and eye the deceased died on the spot instantaneously.
On hue and cry raised by Smt.
Guddi was returning after having a holy dip in the river Ganges, the deceased expressed his desire that they should have a look of their crop and then go home and when these persons reached near the field of Chhabinath, the accused persons emerged from behind the crops.
She also stated that thereupon Ram Asrey, Virendra and Girish Chandra caught hold of the deceased.
