Pankaj Naqvi - (1.) This criminal appeal is preferred against the judgment/order dated 9.12.2008, passed by the Addl. Sessions Judge (Court No.4), Gorakhpur in S.T. No.213/1999, P.S. Cantt., Gorakhpur, convicting/sentencing the appellant under Section 302 IPC with life and other ancillary conviction/sentences. 1. The prosecution case:- (A) A missing report (Ext. Ka-1) came to be lodged on 17.11.1997 by P.W.-1/Ram Chandra, alleging that his son Jitendra @ Mantu aged about 16 years went missing on 15.11.1997 at about 5.30 PM after he had gone to ease himself. (B) P.W.-1 while searching the articles/goods belonging to his son (victim) came across a joint photograph of his son (victim) and that of the niece of the appellant, which led him to believe that the duo was in a relationship. He apprised the I.O.(P.W.5) of the said fact on 19.11.1997. P.W.-5/the I.O. inquired from the appellant about the victim and on the basis of statement of appellant Rajman as also of accused Bablu, Saroj and Suggan and at their pointing out the dead body of victim which was wrapped in a plastic bag and hidden 2-3 feet deep inside the earth was recovered on 19.11.1997 at about 4.15 PM from the fields of one Bhagelu. All the 4 accused present at the scene, confirmed the identity of the body being that of the victim. A recovery memo (Ext. Ka-3) of the dead body was prepared which was signed by the police witnesses present as also P.W.-3/Deo Murat Singh. (C) On the basis of recovery of the dead body of the victim, an FIR as Case Crime No.2058/1997, under Sections 147/302/201 IPC was registered on 19.11.1997 at P.S. Cantt., Gorakhpur against 5 accused i.e. appellant - Rajman, Suggan, Lal Chand, Saroj and Bablu. (D) The inquest (Ext. Ka-3) of the victim commenced on 19.11.1997 at 17.00 hours which concluded at 18.30 hours at the fields of Bhagelu Chaudhary in the presence of P.W.-3 and other witnesses. The inquest witnesses also identified the dead body as that of the victim. (E) P.W.-7/the medico at District Hospital, Gorakhpur conducted the autopsy of the victim on 20.11.1997 at 3.05 PM. Body condition of the victim and injuries are as under:- Body Condition: Average built, eyes closed, mouth closed, rigor mortis passed off, skin peeled off, abdomen distended, postmortem staining present, skin hair peeled off, foul smell present. Injury (i) Contusion 24 cm x 23 cm, on the front of the right side of the chest underlying right 7th ribs is fractured. (ii) Contusion 20 cm x 19 cm on the left side of the chest on the front underlying left 8th and 9th ribs are fractured. (iii) Contusion 10 cm x 15 cm on the left thigh on the front. (iv) Contusion 9 cm x 8 cm on the right thigh on the front. (v) Contusion 22 cm x 6 cm on the front of the neck underlying tracheal muscles are extended. The tracheal ring is broken, Trachea is extended. The right cornuae of the hyoidbone is fractured. (F) P.W.-6, another I.O. after conducting other investigational formalities, such as obtaining the statements of the witnesses, including P.W.-3 (witness to the recovery of dead body and inquest), prepared the site plan (Ext. Ka-10) of the scene of recovery of the dead body of the victim and other relevant police papers, submitted a charge-sheet (Ext. Ka-11) against all above accused. (G) Accused Saroj and Bablu were found to be juveniles, their trial segregated. The other 3 accused including appellant Rajman were charged under Sections 147/302/201 IPC, appellant Rajman was also charged under Section 302 IPC. All the 3 accused denied the charges and claimed to be tried. (H) The prosecution examined P.W.-1, father of the victim, P.W.-2, cousin of the victim, a witness of last seen; P.W.-3 witness to the recovery of the dead body of the victim; P.W.-4, also a last seen witness who turned hostile; P.W.-9/Buddhi Ram before whom the accused Lal Chand is alleged to have made an extra judicial confession; rest are formal witnesses. (I) All the accused claimed false implication on account of previous animosity. (J) The trial court finding the motive to be that of an illicit affair between the victim and the niece of the appellant, not being palatable to the appellant, who eliminated the victim, followed by the recovery of his dead body which was dug out from the fields to which the appellant only had knowledge, while acquitting co-accused Suggan and Lal Chand, convicted the appellant as above.
(2.) We have heard Sri Vinay Kumar Singh Chandel and Sri Kunwar Bikram Suryabansh, learned counsel for the appellant and Sri A.N. Mulla, the learned A.G.A.
(3.) Learned counsel for the appellant assailed the conviction of the appellant on the following grounds: (i) No motive established as at no point of time the accused - appellant ever complained to the family of the victim that they desist the victim from continuing the relationship with the niece of the appellant, as also the fact that the niece was already married, a year prior to the occurrence. (ii) Link of last seen evidence is not established as P.W.-2, cousion of the victim shared the last seen information with P.W.-1 only on 19.11.1997 i.e. after 4 days of the victim going missing. (iii) Recovery of the dead body of the victim at the pointing out of 4 accused is not admissible in evidence as on the same recovery evidence, co-accused Suggan and Lal Chand stood acquitted, therefore, same benefit is liable to be enured to the appellant as the recovery is manipulated. (iv) It's a case of circumstantial evidence in which vital incriminating links are missing, thus, prosecution miserably failed to establish that it was none other than the appellant, who committed the murder of the victim. ;