- (1.) HEARD learned counsel for the accused appellant as well as the learned Public Prosecutor and perused the record.
(2.) LEARNED counsel for the accused appellant has submitted that the present one is a case of no evidence. The circumstances which have been relied upon by the learned trial court do not complete the chain. Learned counsel for the appellant submits that the evidence of last seen in this case is wholly unreliable. In the instant case initially the report was first lodged by the son of the deceased PW-18 Tulsi Ram. It was contended that so far as the son of the deceased is concerned, PW-18 Tulsi Ram has stated that the deceased was going with the accused to Bheem for looking for a bride for her son. It was submitted that Tulsi Ram PW-18 did not disclose this fact at the very initial stage when he lodged the Missing Person Report on 11.7.2009, nor even when the dead body was recovered on 12.7.2009. For the first time, this fact has been disclosed by the witness on 20.7.2009, which makes the story of the prosecution regarding last seen, doubtful. The learned Public Prosecutor, on the other hand, submitted that even if the testimony of the son Tulsi Ram PW-18 is ignored, there is the evidence of PW 1 Chhitar Singh, PW 2 Smt. Pushpa Devi, PW-4 Rajesh, PW-10 Kailash Kumar and PW-11 Prem Devi, these are all independent witnesses and at the same time, the accused who is a relative of one of the co-tenant Mukesh whose house the accused appellant used to come frequently and saw the accused come with the deceased in an injured condition. The learned Public Prosecutor has pointed out that despite of the fact that some of these witnesses have retracted from their statement u/s 161 Cr.P.C. and were declared hostile, nonetheless the testimony of PW-1 Chhitar Singh is corroborated that of PW-13 Dr. Sumir Ghai who has stated that the deceased was admitted in the hospital in an injured condition as was stated by the other witnesses named above, which as per the accused were caused due to fall from the motorcycle which was recovered at the instance of the accused appellant. We have considered the rival submissions. Having regard to the facts and circumstances of the case and without going into the detailed discussion of the submissions made before us, as it may affect the rights of either of the parties, we are of the view that in the facts and circumstances of the present case, it is not a fit case in which the sentence of the accused appellant Dilip Kumar S/o Shri Kaluram be suspended. Accordingly, the second application for suspension of sentence is dismissed. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.;