- (1.) HEARD learned counsel for the appellant, learned AGA for the State of U.P. and perused the lower court record. This application for granting the leave to appeal has been filed against the judgment and order dated 02.11.2013 passed by learned Additional Sessions Judge, court No. 5, Gorakhpur in S.T. No. 222 of 2010 whereby the accused -respondent has been acquitted for the offence punishable under Sections 364, 302, 201 IPC.
(2.) HAVING heard learned counsel for the applicant and learned AGA for the State and perusing the records, it reveals that the FIR of this case has been lodged by Ayodhya P.W. 1 on 11.12.2007 at 09.45 p.m. in respect of the incident occurred on 07.12.2007 at about 6.00 p.m. alleging therein that the deceased had gone from his house at about 6.00 p.m. on 07.12.2007 to his sugarcane field for looking after. Thereafter, he did not return. The accused -respondent had demanded sugarcane from the deceased, the deceased had gone to have five sugarcane to give the same to the accused -respondent at his madai, thereafter, he did not return. The search was made, but no where about of the deceased. He was having suspicion the deceased was abducted by the accused persons. On 12.12.2007 the dead body of the deceased was recovered and this information was given to the P.S. concerned by one Praduman on 12.12.2007. On that information, inquest report was prepared.
(3.) ACCORDING to the postmortem report, the deceased has sustained four anti -mortem injuries and the cause of death was due to coma as a result of anti -mortem injuries. After completing investigation, the Investigating Officer has submitted charge -sheet. On which the learned Magistrate has taken cognizance and the case was committed to the court of sessions where nine witnesses have been examined and thereafter, statement of the accused under section 313 Cr.P.C. was recorded, but no person in defence was examined. It is a case based on the basis of circumstantial evidenced. There is no eyewitness account. At the most the evidence of last seen may be said to be against the accused -respondent that the dead body of the deceased was recovered after five days of the alleged incident. The witnesses who were examined in support of the last seen were holding the same locality, but it is surprising that till lodging the FIR they did not make any whisper with the record to the alleged incident. Even the name of the witnesses have not been mentioned in the FIR. The prosecution has failed to complete the chain of the circumstances. Nothing incriminating has been recovered at the pointing out of the accused -respondent or from his possession during investigation. The trial court has considered the entire evidence, does not bear with the any whisper of the evidence.;