AJAY KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri V.P. Srivastava, Senior Advocate assisted by Sri Virendra Kumar Jaiswal, learned counsel for the appellant, learned A.G.A. for the State and perused the material on record.?

(2.) The appellant, Ajay Kumar who is in jail has preferred this appeal against the judgement and order dated 21.11.2015 passed by the Third Addl. Sessions Judge, court no. 2, Ghaziabad in S.T. No. 2096 of 2009 (State vs. Rahul Tyagi and others) has been convicted and sentenced under Sections 147, 148, 149, 364, 302, 201, 34, 404 and 120B I.P.C., P.S. Simbhawali, district-Ghaziabad. He is seeking enlargement on bail during the pendeny of this criminal appeal.

(3.) It is contended by learned counsel for the appellant that according to the prosecution case the deceased Chandrapal Singh had gone missing on 25.5.2009 at about 4 p.m. and the informant Kamal Kumar who is the son of the deceased had been informed by the deceased's nephew Girish Kumar and his brother Rohtash, who were examined as PW1 and PW2 on the same date on which the deceased had gone missing, they had seen him consuming liquor in the company of the appellant and the other co-accused Rahul, Vinod and Ashok Valmiki in the evening of 26.5.2009 but yet the F.I.R. of the incident was lodged after an inordinate and unexplained delay of more than two days on 28.5.2009 at about 18:20 hours. He next submitted that inordinate delay of almost forty days on the part of the Investigating Officer in recording the statements of PW1 Girish Kumar and PW2 Rohtash on the basis of whose last seen evidence, the appellant and the other co-accused were nominated as accused by the informant in the F.I.R. creates a doubt regarding the truthfulness of the facts stated by them. He further submitted that although the prosecution has alleged that the dead body of the deceased was recovered on the pointing out of the appellant, Ajay Kumar but in none of the twelve photographs which were taken during the course of recovery of dead body under the instructions of the Investigating Officer and which were brought on record as Ext.Ka-2 to Ext.Ka-14, the appellant is visible and hence, the prosecution's claim that the dead body of the deceased was recovered at the pointing out of the appellant does not appear to be credible. When the I.O. was confronted with the aforesaid aspect of the matter he failed to come with any explanation.?