HON'BLE MATHUR, J. - (1.) ON conviction for the offences punishable under Sections 302, 364 and 201 Indian Penal Code by the judgment dated 4.2.2011, the accused appellants are sentenced as under:- "Offence U/s. Sentence Fine Rs. In default 302 IPC Life Imprisonment 50000/- 6 months Additional Imprisonment 364 IPC 10 years 10000/- ONe month Additional Imprisonment 201 IPC 7 years 10000/- ONe month Additional Imprisonment."
(2.) BRIEF facts of the case are that one Suresh Kumar (PW-3) submitted a written report (Ex.P/6) dated 28.9.2010 at Police Station Bhirani about missing of his brother Suman (deceased) since 22.9.2010. An FIR then was lodged at the stance of Suresh Kumar on 2.10.2010 stating therein that he and his mother Smt. Savitri (PW-4) in morning of the day came to know somewhere from village that Suman was taken on a motorcycle by Anil Kumar son of Hawa Singh and Sanjay son of Mahendra to the agricultural field of Sanjay, where he was killed by Sanjay, Budhram son of Leeladhar, Budhram son of Jile Singh, Lalchand and Charan Singh by giving serious beating with lathis after tiding hands and legs. The body of Suman then was thrown in Canal Amar Singh Branch. The decomposed body on search was found near 46 RD Bridge. On receiving the information aforesaid a case was registered, investigation was made and police report as per Section 173 Cr.P.C. was filed before the competent court. The case then was committed to the court of Sessions and the accused persons were charged for the offences punishable under Sections 302, 364 and 201 Indian Penal Code. On denial of the charges regular trial was conducted. The prosecution supported its case by producing 18 witnesses out of whom Sushil Kumar (PW- 6), Smt. Smt. Rajbala (PW-9), Sunil Kumar (PW-7), Vinod (PW-11), Amar Singh (PW-10), Prakash (PW-8) and Sandeep (PW-12) were cited as eye witnesses. Dr.Vijaypal Yadav (PW-15) Medical Officer, Community Health Centre, Bhadra conducted the autopsy alongwith Dr. Shailendra Saharan. Thus, he verified the postmortem report (Ex.P/21). Shri Indra Kumar (PW-17) narrated all the steps taken during the course of investigation being the Investigating Officer. Shri Anant Ram (PW-16) was brought in witness box to substantiate the recovery of lathis used in beating deceased and clothes of the deceased recovered at the instance of accused persons. The prosecution also produced documentary evidence i.e. Ex.P/1 to Ex.P/52. An opportunity was given to the accused persons to explain their conduct with regard to the evidence adduced by the prosecution against them. All the accused persons denied the allegations and claimed their innocence. No witness in defence was produced. The trial Court after considering the entire evidence available on record, while relying upon recovery of lathis and clothes of deceased as per the information given by the accused persons held them guilty, thus, convicted and sentenced accordingly. While challenging the conviction, the submission of counsel for the appellants is that as a matter of fact instant one is a case of no evidence as no eye witness supported case of the prosecution and the recovery made is also not sufficient to convict the appellants for the serious offences punishable under Sections 302, 364 and 201 Indian Penal Code. It is asserted that the lathis recovered at the instance of the accused appellants were not having blood stains and, therefore, those could have not been connected with the crime in question. While opposing the arguments, learned Public Prosecutor submits that the lathis and clothes of deceased were recovered at the instance of accused persons, therefore, the trial court rightly held them guilty for the charges levelled. Heard counsel for the parties.
(3.) THE prosecution supported its case with the aid of eye witnesses and recovery made at the instance of the accused persons. So far as the eye witnesses are concerned, suffice it to mention that not a single person supported the prosecution story. It is pertinent to note that at the first instance on 28.9.2010 a report was submitted by Suresh Kumar (PW-3) at Police Station with regard to missing of his brother Suman since 22.9.2010. In this report nothing was stated about abduction of Suman by accused Sanjay and Anil Kumar. At the first instance only on 2.10.2010 Suresh Kumar by submitting a written report disclosed about death of his brother Suman with assertion that he was taken on a motorcycle by Anil Kumar and Sanjay and thereafter he was beaten with lathis by the accused persons. A very vague assertion is made in the first information report about getting certain information from village. The vagueness occurred in the first information report sustained even in the statements of PW-3 Suresh Kumar and his mother PW-4 Savitri. Both these witnesses did not disclose about source of getting the information pertaining to involvement of the accused persons in the incident. As such, nothing can be held adverse against the accused appellants on basis of the evidence sought from their witnesses. The recovery of lathis and clothes were made on basis of the information given by the accused persons and i.e. supported by a constable Anant Kumar. The prosecution made an effort to get such recovery substantiated by PW-3 Suresh Kumar and PW-4 Savitri also, however, in quite unambiguous terms both these witnesses stated that the clothes were not recovered in their presence and they only identified the clothes at a subsequent stage. For the sake of argument, even if it is assumed that the clothes and lathis were recovered at the instance of accused persons, then too no material is available on record to connect these articles with involvement of the accused persons in the crime. The postmortem report nowhere mentions about availability of any wound that would have been given by lathi or weapon alike and as a matter of fact, it was not at all possible in view of the decomposed condition of the body. The inference drawn by the trial court to convict the accused appellants on basis of the recovery is quite far fetched and that in no manner is sufficient to convict them. The entire prosecution story suffers from a reasonable doubt about involvement of the accused persons in the crime concerned. ;