Document Fragment View

Matching Fragments

10. In the opinion of the doctor, death was caused due to asphyxia as a result of ante-mortem strangulation and hemorrhage due to ante mortem injuries.

11. On 18.2.2003, police concerned reached at the room concerned in which deceased and accused appellant Brijesh Chaudhary were residing and opened the door breaking lock and recovered tickets from the pocket of shirt of appellant Brijesh Chaudhary in presence of the witnesses.

12. On 21.2.2003, on the basis of information received through informer, S.H.O. Sanjay Kumar alongwith other police personnel and Sujan Singh, the informant, raided at the house where the Brijesh Chaudhary and deceased were living on rent, and arrested the accused appellants with the alleged money and watch.

20. We have heard Shri Noor Mohammad, learned counsel for the appellants as well as Shri Raj Kamal Srivastava learned AGA appearing for the State in both appeals.

21. Castigating the impugned judgment and order, learned counsel appearing for the appellants has submitted that appellants are innocent and have not committed the present offence. Findings recorded by trial court in the impugned judgment and order are illegal and perverse. It is purely a case of circumstantial evidence. None has seen the incident. Dead body of the deceased was recovered from a sugarcane field. F.I.R. was lodged against unknown person. Post mortem on the dead body was also conducted as against unknown dead body and till then none had identified the dead body of the deceased. Prosecution has not given the details of mobile numbers said to have been used by the informant, owner of the house in question, where deceased and accused persons were residing, and also of the accused. It was also submitted that there are major contradictions in the statement of prosecution witnesses regarding timing of last seen of the deceased and accused persons together. Bus tickets said to have been recovered in the matter are also not sufficient to connect the appellants with the present matter. It is not clear from the prosecution evidence as to whether said bus tickets were actually belonging to the bus in which deceased and accused persons are said to have travelled or not. Recovery of tickets from the room of accused Brijesh Chaudhary is also not believable and same is also not supported with independent evidence. Prosecution witness Mukesh Gupta, owner of the house in question, had reached the place of recovery when recovery memo was being prepared. Other prosecution witnesses are the family members of the deceased. Recovery of knife said to have been used in commission of the crime is also not believable, as it appears improbable and unbelievable that police had opened the door of the room, wherein deceased and accused Brijesh Chaudhary were residing, after breaking the lock and thereafter accused persons would have again gathered in the said room. It was also submitted that motive suggested by the prosecution is not believable and also not sufficient to commit the present offence. Recovery of wrist watch said to have been made from the possession of the co-accused Hari Om is also not believable, as no details have been mentioned by the informant in the application moved before the Police concerned about the said watch. Referring to the application said to have been moved on behalf of the informant Sujan Singh it was further submitted that missing report said to have been lodged by Mohan Lal, father of the informant, has not been placed by the prosecution before the Court. Chain of circumstances are not so linked with each other and proved to form an irresistible conclusion against the accused appellants to commit the present offence. PW-9 Harpal is the chance witness. His presence at the Bus Stand, Bareilly is improbable and unbelievable. If deceased's grand father had seated the deceased in Bus at around 12.00 O'clock at Faridpur, how the deceased and accused would have been seen at 2.00 p.m. by the prosecution witness Harpal at Bareilly whereas distance between the two is about 25 kilometers. Statement of PW-9 Harpal under Section 161 CrPC was recorded belatedly. Referring to statement of accused appellants recorded under Section 313 CrPC it was also submitted that all incriminating facts were not put before them in the statement under Section 313 CrPC and due to this reason prejudice was caused to the accused appellants in defending their case. It was lastly submitted that impugned order suffers from infirmity and illegality warranting interference by this Court.

23. We have considered rival submissions made by learned counsel for parties and have gone through entire record carefully.

24. In this matter as is evident from record, PW-1 Dr. Jagwant Singh has informed the local police regarding receiving / lying of unknown dead body in his sugarcane field. Thereafter, inquest report was prepared. Post mortem was conducted against unknown dead body. Clothes and other articles found on the body of deceased were preserved by the police concerned. It is also evident from the record that missing report was lodged by the grand father of the deceased but same was not proved during trial. One application was moved by PW-4 Sujan Singh, father of the deceased, at the police station concerned for identification of the dead body of the deceased on the basis of clothes etc.. It is also clear that on the basis of identification of clothes etc., another application was moved by PW-4 Sujan Singh mentioning therein the conspiracy of the accused appellant Brijesh Chaudhary in committing the present offence. Mohan Lal, grandfather of the deceased, had left the deceased at Faridpur Bust Stand at 12.00 O'clock. PW-4 has not seen the deceased alongwith accused appellants together at any place. Details of mobile numbers said to have been used by PW-4 Sujan Singh, Mukesh Gupta (owner of the house in question) and accused persons, were not furnished during trial. As per statement of PW-9 Harpal, he alongwith one Satish had gone to Bareilly for purchasing engine parts and when he reached at Bareilly Bus Stand, saw the deceased alongwith accused appellants at 2.00 p.m.. This witness had also asked him about the purpose of their presence at that place, upon which, they had disclosed that they were going to Bijnor to attend their classes. When this witness was cross-examined, he told that these facts were not told by him to the Investigating Officer. Record also reveals that PW-8 Mukesh Gupta reached at the place of recovery of the bus tickets from the pocket of shirt of accused appellant Brijesh Chaudhary at the time of preparation of fard, meaning thereby, when police opened door of room breaking the lock, he was not present there. Thus, in this matter, there remains only statement of PW-4 Sujan Singh and PW-5 Chhatrapal Singh, who are the relatives of deceased and resident of Faridpur Qasba. Recovery of bus tickets is said to have been made from the room wherein deceased and accused appellant Brijesh Chaudhary were residing in Bijnor Town. Thus, it appears that recovery of bus tickets from the shirt of accused appellant Brijesh Chaudhary is not supported with independent evidence of that locality. It is also evident from the record that accused appellants were arrested from the said house / room on 21.2.2003 whereas recovery of tickets from the same place is of 18.2.2003. Prosecution has not proved this fact as to whether after recovery of the bus tickets from the pocket of shirt of accused appellant Brijesh Chaudhary said room was kept opened or it was closed.

31. Another disturbing circumstance in the matter is that on 18.2.2003 concerned Police alongwith PW-4 Sujan Singh and some other witnesses reached at the concerned room wherein deceased and accused appellant Brijesh Chaudhary were residing and door of the said room was opened breaking the lock. Police concerned recovered bus tickets for Bareilly to Bijnor said to have been used by accused appellant Brijesh Chaudhary. If room in question was opened breaking the lock on 18.2.2003 it appears improbable and unbelievable that accused appellant Brijesh Chaudhary and co-accused would have remained present on 21.2.2003 in the same room. Prosecution has not adduced any sort of evidence to prove that after opening the room in question on 18.2.2003 it was again locked or it remained opened. If certain recovery was made on 18.2.2003 from the same room, presence of accused appellants on 21.2.2003 for collecting articles said to have been kept in the said room is not believable and arrest of accused appellants from the place shown by the prosecution on 21.2.2003 is highly doubtful.