- (1.) This case is listed for admission as peremptorily. Counsel for the appellant Sri Rishikesh Tripathi and Sri Arun Kumar Gupta are not present. Heard learned A.G.A. and perused the lower Court record. This application for granting leave to appeal has been filed by the appellant Smt. Shela Devi against the judgement and order dated 28.8.2012 passed by learned Addl. Sessions Judge (Ex Cadre), Court No. 14, Badaun in S.T. No. 465 of 2009 connected with S.T. No. 466 of 2009 whereby the accused respondents have been acquitted for the offence punishable under section 302/201, IPC and the accused respondent Shiv Lal has been further acquitted for the offence under section 25, Arms Act.
(2.) From the perusal of the lower Court record and impugned judgement it reveals that FIR of this case has been lodged by Anek Pal, P.W. 1 on 28.11.2008 at 11.35 A.M. in respect of the incident allegedly occurred at unknown time mentioning therein that the first informant Anek Pal was village chowkidar of Sodhamai. On 28.11.2008 he had gone to his agricultural field, he found a dead body lying on Sodhamai-Rejola road where crowd was gathered, its information was registered at police station vide Nakal-rapat No. 28 dated 28.11.2008 at 11.35 A.M., thereafter a written report dated was filed by P.W. 2 Chandra Pal alleging therein that the accused respondents Ramvir and Shiv Lal were having the enmity with the deceased because the deceased was charged by accused respondent Ramvir in respect of Kundal wife of the accused respondent of Ramvir was stolen. On 25.11.2008 the accused respondent Rajendra had also come to the village of the deceased and he had told that Dharmpal son of Chandrapal in his village. Chandra Pal was asked by him to go to his village by arranging some money. On 27.11.2008 after taking the meal he had gone in search of Dharmpal by saying that he was going to the house of accused respondent Rajendra in village Rijola, on 28.11.2008 at about 11 A.M. the information was received by Chandra Pal that his son Vedram was killed in village Rijola and Sodhamai, after committing his murder his dead body was burnt. On that information Chandra Pal, his brother Brijpal and wife of the deceased Vedram came to village Sodhamai, they identified the body on the basis of half burn clothes, shocks and shoes, thereafter he enquired about it and came to know through Rakesh and Amar Pal that on 27.11.2008 at about 7.00 P.M. the deceased was seen in the company of accused respondents near turning of Sodhamai. They made a quarry to the deceased, he replied that he was taken by the accused respondents Dharmpal. In such circumstances Chandrapal was having the belief that on account of the old enmity, by playing the fraud the deceased was called by the accused respondents, thereafter he has been killed and his dead body has been burnt. According to the post mortem examination report of the deceased he had sustained three ante mortem injuries in which injury No. 1 was fire arm wound of entry, its exit wound was injury No. 2 and injury No. 3 was lacerated wound on the left side head. The deceased had sustained post mortem burn injury all over the body except Buttock and perineum and lacerated wound was on the front of the left thigh. On 26.12.2008 one country made pistol was recovered at the pointing out of the accused respondent Shiv Lal. At the stage of the trial from the side of the prosecution nine witnesses have been examined, thereafter the statement of the accused respondents were recorded" under section 313, Cr.P.C. but in defence no person was produced before the Trial Court as witness. From the perusal of the deposition made by the witnesses it appears that P.W. 1 Anekpal, village chowkidar is not eye witness, he simply gave the information to police station about the dead body, P.W. 2 Chandrapal is also not an eye witness, he is father of the deceased, he gave the report to the police station concerned on the basis of the information given by Rakesh and Amar Pal that the deceased was seen in the company of accused respondents on 27.11.2008 at about 7.00 P.M. P.W. 3 Rakesh is witness of the last seen, according to his deposition the deceased was seen in the company of the accused respondents on 27.11.2008 at about 7.00 P.M. According to his examination-chief the deceased had asked him that he was going in the company of the accused respondents to meet Dharmpal. According to his deposition, no allegation has been made with regard to the weapon etc. The only evidence of last seen is of P.W. 3. The witness P.W. 4 Dr. Yogendra Kumar had conducted the autopsy. P.W. 5 Amarpal is the witness of last seen, he deposed that he and P.W. 3 Rakesh seen the deceased in the company of accused respondents at about 7.00 P.M. On quarry made by him and P.W 3 Rakesh reply was given by them that the deceased was taken by accused respondent Dharmpal. On the next day body of the deceased was found. The remaining witness P.W. 6 constable 1006 Balram Tiwari, P.W. 7 S.I. Raghuraj Singh, P.W. 8 S.I. Ramvir Singh and P.W. 9 S.I. Bhardwaj are the formal witnesses. After considering the entire evidence available on the record the Trial Court has recorded the findings of the acquittal, according to the impugned judgement P.W. 3 Rakesh is the cousin of the deceased and P.W. 5 Amarpal is brother-in-law of the deceased. According to the deposition of P.W. 3 Rakesh, he made the disclosure of the fact that the deceased was seen in the company of the accused respondent to his father Chandrapal on fourth day of the alleged incident. According to the deposition of P.W. 5, he made such disclosure to father of the deceased after three or four days of the alleged incident. Both the witnesses are highly entrusted witnesses but it is surprising that as to why they did not disclose the fact that the deceased was seen in the company of the accused respondents at about 7.00 P.M. on 27.11.2008 immediately after recovery of the dead body. The statement of the P.W. 3 Rakesh was recorded by the I.O. on 3.12.2008 and on the same day the statement of the Amarpal was also recorded by the I.O. under section 161, Cr.P.C. The statement of P.W. 3 and P.W. 5 were recorded after four days of the alleged incident. In the present case the evidence only of last seen is available against the accused respondents. There is no other evidence against the accused respondents, the case is based on the circumstantial evidence. In the present case the allegation has been made that accused respondents were having the apprehension that the deceased was involved in the stolen kundal of wife of the accused respondent Ramvir but no FIR was lodged in this regard. It is a case in which prosecution has failed to complete the chain of the circumstance for holding guilty to the accused respondents, only on the basis of last seen evidence the conviction of the accused respondents may not be made. The Trial Court has not committed any error in recording the findings of the acquittal. The view taken by the Trial Court acquitting the accused respondents is a perfect view, it does not require any interference of this Court, therefore, leave to appeal is refused. Accordingly this application is dismissed.;