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The facts, in brief, of this case are that the F.I.R. has been lodged by Ashok Kumar Gupta, P.W. 1 on 18.8.1995 at 7.30 a.m. at P.S. Cantt. district Varanasi in case crime no. 391 of 1995 under sections 302,201 I.P.C. in respect of the incident occurred about 8.00 p.m. on 17.8.1995, at the house No. S-4/90- Orderly Bazar, Varanasi alleging therein that the first informant Ashok Kumar Gupta was residing in house no. S-4/90 Orderly Bazar, Varanasi, in its next portion, his real brother accused Ram Chandra Gupta was residing separately in which he was running a restaurant in the name and style of Amrit Sagar Restaurant, in both the brothers, the partition had taken place. His brother and his family members were having jealousy( Androoni Kalah). The first informant was having a shop of Gas Chulha( Gas Stove) in his house. On 17.8.1995 at about 8.00 p.m. after closing the shop, he called his son Amit Kumar but no response was received, then the search was made, but his whereabouts could not be known. He remained in search of his son, he along with his wife, remained whole of night in the balcony( Barja) of the first floor of the house, whole of the night any member of the house did not enter into the house and nobody went out. In the morning of 18.8.995 the first informant had gone in search of his son at that time also his wife remained in the balcony in a standing position. He came back to his house, he was told by the accused Ram Chandra that the dead body of the Amit Kumar was lying in the freezer of his restaurant, then he and his nephew went there and saw the dead body of the deceased lying in the freezer. The freezer was in working condition, he was having apprehension that the deceased Amit Kumar was killed by the accused Ram Chandra and his family members by way of pressing his neck and chest thereafter, the dead body was concealed in the freezer. The F.I.R. was lodged at the police station for taking proper action.

After lodging the F.I.R., its the investigation was entrusted to P.W. 8/S.I. Ram Swaroop Shakya he copied the chik, F.I.R. G.D. in the case diary, he came to place of occurrence he got photography of the site. For completing the inquest proceedings, he arranged the witnesses, the dead body was taken out from the Freezer and completed the proceedings of inquest, he prepared the inquest report, challan nash, photonash, letter to CMO, letter to officer in charge of police line. The dead body was handed over to the constables, Ram Kewal and Gupteshear Rai for conducting the autopsy. He made spot inspection; prepared site plan. He took in his possession the freezer, a pair chappal of the deceased recovered from the freezer, a black coloured rubber piece recovered from bath room. One citizen wrist watch recovered from the right pocket of the pant, one comb was recovered back pocket of the pant of the deceased were also taken into possession, all the articles including freezer were sealed in separate cloth cover, its memo was prepared which was marked as Exhibit Ka-11 and in the presence of the public witnesses he prepared the inquest report( Exhibit Ka 2) and other relevant papers. The dead body of the deceased Amit recovered from the deep freezer kept in the cellar of the restaurant was sent for autopsy after completing the proceedings of inquest.

Heard Sri M.P.Yadav, learned counsel for the appellant Atul Pandey alias Babloo, Dr. Abida Sayeed, Amicus Curiae for appellant Pankaj Kumar Gupta, Sri G.S.Chaturvedi Senior Advocate assisted by Sri Samit Gopal, counsel for the complainant and the learned Additional Government Advocate for the State of U.P. To evaluate the evidence of each witness available on record, it is necessary to peruse the examination in chief and cross examination of each witness;

The P.W.1 Ashok Kumar Gupta deposed before the trial court in his examination in chief that the house of the accused Ram Chandra was on west side of his house, in that house, in the back of shop under the stairs a fridge was kept, the Amrit Sagar restaurant was on the first floor of the house of accused Ram Chandra. There had been a partition between him and Ram Chandra. He is his real brother. There were stairs to go on the roof of Ram Chandra and from roof of Ram Chandra, it was possible to reach on the roof of his house. In the back of his house, there was compound (Ahata) of Ulfat Bibi. He was having 4 brothers, a family partition was taken place in June of 1982, his three others brothers were residing separately at a far distance. Prior the alleged occurrence, all the brothers started business of Bajrang Development Corporation by investing Rs. 17500/- each, all the five brothers were having equal share in the business but the power of attorney was executed in favour of accused Ram Chandra for business management, in lieu of it, 10% of the profit was to be given to him, remaining profit was to be equally shared. In the meantime the accused Ram Chandra withdrew the sum of Rs. 25,000/- from the firm and purchased a shop No. 8 in his name. It was protested by him but accused Ram Chandra could not be persuaded but he became annoyed to the first informant and his family. The accused Ram Chandra and his wife were extending threats by saying that he was having proud of his son and shop, his dead body would be passed out. The accused Ram Chandra was doing the different tantrik kirya in front of the shop of the first informant. His son, Amit, wanted to purchase a generator, he had asked the appellant Pankaj to give the telephone number of the generator's company. On the day of incident he and his son were setting at their shop, at about 7.00-7.15 p.m. the appellant Pankaj came to the shop to give the telephone number, at that time the appellant Atul Pandey alias Babloo was standing out side of his shop. After having some talks with him, the appellant Pankaj Kumar went to Amrit Sagar restaurant, thereafter the deceased Amit dialed the such number but it could not be connected with person cornered, then he thought that number given was not correct. The deceased Amit went to the restaurant to know correct number from the appellant. Pankaj Kumar Gupta, thereafter, the deceased did not come out from the restaurant. At about 8.00 p.m., after closing the shop he called the deceased but no response came out from his side, the accused Ram Chandra who was standing on the gate of his house was inquired as to whether the deceased Amit had gone to Restaurant, but he replied in negative. At that time in his house, Ram Chandra, Pawan and Pankaj were also residing. The people of Mohalla gathered there who suggested to call police dog to ascertain whether the deceased Amit had gone to restaurant or not, it was told by accused Ram Chandra that the appellant Pankaj had gone in search of the deceased Amit. He and his wife remained in Varandah of his house whole of night they were waiting the arrival of their son Amit. From the place where they were standing, every thing on the ground floor was visible. At about 12.00 O'clock, the appellant Pankaj came back and entered into his house, till morning nobody entered into the house of Ram Chandra and nobody went out from his house. There was light at the place of occurrence. Due to death of a person, the people were awakening in whole of the night in the Hatha of Ulfat Bibi. On the next day morning, the accused Ram Chandra came and stated that some body had told him on phone that the dead body of the deceased Amit was in the freezer, thereafter he and his nephew Sunit saw the freezer, it was opened by accused Ram Chandra, the dead body of the deceased was lying in the freezer. The chappals were recovered from the freezer and the wrist watch and comb were recovered from the pockets of pant which were taken into possession by the Sub-Inspector, a rubber tube was also recovered from the wash room. He proved the written report which was marked as Exhibit Ka 1.

Sri Ram Swaroop Shakya, S.S.I. P.S. Nazirabad has been examined as P.W. 8, according to his cross examination he was posted at P.S. Cantt. Varanasi as Sub-Inspector, in the year 1995, the investigation of this case was entrusted to him on 18.8.1995, he copied the chik FIR and G.D. entry in the case diary. He reached at the place of incident along with relevant papers and after photography of the place of incident, the dead body of the deceased was taken out from the freezer, the same was placed at the floor. In the presence of the witnesses the proceedings of inquest were done and the inquest report was prepared, the same was proved by him, which was marked as Exhibit Ka-2 along with the inquest report Chalan Nash, Photo Nash, letter for conducting the autopsy and letter to police officer of P.S. Lanka was prepared, the same were proved by him, which were marked as Exhibit Ka-6,Ka-7, Ka-8 and Ka 9 and the dead body of the deceased along with the necessary documents was dispatched for autopsy through the constable C.P. 1538 Ram Kewal and Constable C.P. 1987 Gupteshwar Rai and on the same day, the statement of the first informant Ashok Kumar Gupta was recorded and the statements of the witnesses of inquest were also recorded. After recording the statement of the first informant, he made inspection of the place of incident and prepared the site plan, the same was proved by him, which was marked as Exhibit Ka-10 but the freezer in which the dead body was found which was kept in a room of ground floor of Amrit Sagar restaurant, Milk Bar No. S 4/90 situated at Orderly Bazar, Varanasi, was taken in possession. The dead body of the deceased was found in the west column of the deep freezer and a pair of sleeper of Lakhani Brand was also recovered from the freezer and from the same room from latrine cum bathroom, which was in the North East portion of the room one piece of black rubber was found, the piece of rubber was taken into possession by the I.O., one citizen wrist watch was recovered from the right pocket of the pant of the deceased and from the hip pocket one comb was recovered and the recovered items were kept in cloth cover, which was sealed. The recovery memo was also prepared on the spot on which the signature of the witnesses Satya Narain and Vinod Prasad was obtained, which was proved and marked as Exhibit Ka-11, on the same date, the statement of Sanjay Kumar Sand, Suresh Chandra Seth, Hasin Uddin and others were recorded, the search of the accused persons was made but they could not be located. He brought the recovered freezer in a sealed bundle containing the recovered articles at the police station on 18.8.1995 and the same was deposited through its G.D. entry vide Nakal Rapat No. 9 at 2.15. On 19.8.1995, he made the entry of the contents of the post mortem examination report in the case diary and recorded the statement of Smt. Anju Gupta wife of Ashok Kumar Gupta, Bharat Bhushan, Rais Ahmad, and search of the accused persons was made but they could not be traced out. On 20.8.1995, he got the information through Mukhbir that Ram Chandra, Pankaj Kumar and Pawan Kumar were present at Sidhaura Bus Station, who were intended to flee away, on that information, he along with the force came to Sidhaura, Bus Station and arrested accused Pankaj Kumar Gupta, Pawan Gupta and Ram Chandra Prasad Gupta on the same day, they were brought to the police station Cantt. on 24.8.1995. He came to know that the investigation of this case was entrusted to Yogendra Singh, S.H.O. P.S. Cantt. by Ashok Kumar C.O. Thereafter, investigation of this case was done by Sri Yogendra Singh from 30.8.1995. Sri Yogendra Singh got the information that the accused Atul Padey had surrendered in the court of Varanasi, he was present in the lock-up of the court. Thereafter he along with Sri Yogendra Singh came to the court, Sri Yogendra Singh recorded the statement of the accused Atul Pandey, which was transcribed by him on the dictation of Sri Yogednera Singh in the parcha of the case diary. Sri Yogendra Singh was transferred and a new incumbent taken the investigation in his hand. On 17.9.1995, the statement of Ajay Srivastava was taken by Sri Sharad Chandra Pandey, S.H.O. after completing the investigation the charge sheet dated 17.9.1995 was submitted in the court. He denied the signature of Sri Sharad Chandra Pandey and proved the charge sheet, which was marked as Exhibit Ka-12. He identified the deep freezer, the same was marked as Exhibit 1. He also identified two sleepers, wrist watch and a comb, the same were marked as Exhibit nos. 2,3 and 4 respectively. He also identified the rubber piece recovered from the latrine bath room, the same was marked as Exhibit 5. He proved the G.D. dated 18.8.1995 with regard to the recovery of the deep freezer, the same was marked as Exhibit Ka-30.