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The prosecution in order to establish and prove its case in addition to documentary evidence, namely, postmortem report (Ext. -Ka- 13), recovery memo (Ext.- Ka-3), recovery memo (Ext.- Ka- 4), recovery memo (Ext.-Ka-5). inquest report (Ext. Ka-6), site plan (Ext. Ka-14), site plan (Ext. Ka-15) produced the following witnesses for examinaiton on oath before the court namely:-

P.W.-1 Ram Shekhar Dubey P.W. -2/Raghunath Sahay Tiwari P.W. 3/Sri Bhagwat Prasad Tiwari P.W. - 4/Sant Prasad Kanaujiya P.W.-5/Lallan Prasad Tiwari P.W. - 6/Nikku @ Gayatri P.W.-7/Shanti Devi @ Rita Devi @ Ranti Devi wife of deceased/Devi Prasad Tiwari P.W. - 8 /Sub-Inspector Mahendra Pratap Pandey (Retd.) P.W. - 9/Dr. D.K. Singh P.W.-10/Inspector Sarvdeo Singh (Retd.) P.W. - 11/Constable Ram Kumar Mishra P.W. -2/Raghunath Sahay Tiwari, the father of the deceased/Devi Prasad Tiwari in his statement has stated that on 28.01.2010 in the morning at about 08.00 a.m. his son went to the house of the appellant/Ram Pratap Pandey situated in village Kalyanpur Majre Bankatwa, District - Gonda for taking some money fro him.
P.W.-7/Shanti Devi @ Rita Devi @ Ranti Devi wife of deceased/Devi Prasad Tiwari stated that on the date of incident, deceased/Devi Prasad Tiwari at about 09.00 a.m. has gone from her house, telling her that accused-appellant has called him to give money. He wore Pant, Shirt, white coloured of Gamchha and half sweater. He further told her, that in case if he would be late, he will not be returned on the same day.
She further stated that her husband/Devi Prasad Tiwari along with appellant-accused/Ram Pratap Pandey when was in the market, a conversation had taken place with him. Deceased told that if he would be late, he will come in the next morning, Ram Pratap Pandey asked his husband to marry his second daughter with his second son/Dadani, but he refused, on the ground that two daughters cannot be married in the same house.

The trial court has also placed reliance on the statement of P.W.-7/Shanti Devi @ Rita Devi @ Ranti Devi wife of deceased/Devi Prasad Tiwari in respect to the fact that her husband has gone on the date of incident at 09.00 a.m. telling her that he was going to house of the accused-appellant/Ram Pratap Pandey at Gonda to take money and in respect to the telephonic conversation which has taken place between her and her husband as well as accused-appellant/Ram Pratap Pandey and his wife which she has given in the statement. As such the trial court held that the prosecution has proved the case beyond doubt which are required to take into consideration for convicting a person as per circumstantial evidence.

Whereas P.W.-7/Shanti Devi @ Rita Devi @ Ranti Devi in her statement has stated that on 28.01.2010 at 09.00 a.m. her husband left the house and went to village of accused-appellant/Ram Pratap Pandey situated in village Kalyanpur Majre Bankatwa, District - Gonda to meet him who has called him on phone to take the money, thereafter she had a telephonic conversation with him from the market of the village, later on when she was unable to contact her husband on telephone she called Ram Pratap Pandey who told her that he has given to her husband Rs. 8000/- and Rs. 100/- for conveyance and boarded him on bus. As her husband has not reached, she again made a mobile cell to call Ram Pratap Pandey who abused her and said that he has killed her husband and thrown him away However, the police has neither taken into custody the mobile of P.W. 7/Shanti Devi @ Rita Devi @ Ranti Devi in order to verify the veracity of the said evidence, mandatory provisions of Section 61(a)(b) of the Indian Evidence Act should be followed as the same has not been done so the accued-appellant has been wrongly convicted.