IMPORTANT POINT
The main legal point established in the judgment is the application of circumstantial evidence, including the 'last seen theory', recovery of the body from exclusive possession, and the significance of false and evasive replies by the accused in determining guilt.

JUDGMENT :

Sudhir Singh, J.

Heard learned counsel for the appellant and learned A.P.P. for the State.

2. The present criminal appeal has been preferred against the judgment of conviction dated 22.11.2016 and the order of sentence dated 02.12.2016, passed by Sri Birendra Kumar Mishra, Xth Additional Sessions Judge, Saran, Chapra in Sessions Trial No. 786/2011, arising out of Rasulpur P.S. case No. 60/2011, whereby and whereunder the appellant has been convicted for the offence under Sections 302 and 201 of the Indian Penal Code and sentenced to life imprisonment and a fine of Rs. 5000/-under section 302 of the Indian Penal Code, and five years rigorous imprisonment and a fine of Rs. 3,000/-under Section 201 of the Indian Penal Code, and in default of payment of fine, the appellant has been directed to undergo additional rigorous imprisonment of two years and one year under Sections 302 and 201 respectively of the Indian Penal Code. It was further directed that the sentences so imposed shall run concurrently.

3. The prosecution case, as per the written report of the informant, is that the informant is resident of village Rasulpur. On 10.06.2011, the informant’s son was sitting at his shop, around 11 a.m., the appellant, of the same village, came to the shop of informant and took his son along with him for some work. After three hours, when the informant’s son did not return then the informant called his son on his mobile but it was found switched off. The informant further stated that at 8.00 p.m., he met with the appellant and asked about his son, on which he told that he got back his son from Asahni and left him near Machhlihatta. Thereafter, the appellant refused to say anything. The informant suspected that after calling his son, the appellant got him kidnapped.

4. On the basis of written report of the informant (PW 5), Rasulpur P.S. case No. 60 of 2011 was registered under Sections 365 and 120B of the Indian Penal Code and investigation was taken up. In course of investigation, Sections 364, 302 and 201 of the Indian Penal Code were added. On completion of investigation, a charge-sheet was submitted under sections 364, 302, 120B, 201 of the Indian Penal Code vide Charge-sheet No. 77/2011 dated 08.09.2011. The learned jurisdictional Magistrate took cognizance of the offence. Thereupon charges were framed against the appellant to which the appellant pleaded not guilty and claimed to be tried.

5. During trial, the prosecution examined altogether nine witnesses, namely, PW1 Chandra Kumar Soni, PW2 Manoj Soni, PW3 Juganu Prasad Soni, PW4 Pradeep Kumar Gupta, PW5 Ramsudin Soni (the informant), PW6 Dr. Ravi Shankar Singh (doctor), PW7 Ramrati Devi, PW8 Surendra Paswan, PW9 Amit Kumar Manjhi. Prosecution has also produced exhibits as Ext. 1 -fardbeyan, Ext. 1/1 -formal F.I.R., Ext. 2 post-mortem report, Ext. 3 signature on fardbeyan, Ext. 4 signature on inquest report, Ext. 1/2 and 1/3 signature on inquest report. The defence has also produced five witnesses viz. DW1 Girish Tiwari, DW2 Meena Devi, DW3 Krishna Prasad, DW4 Farida Khatoon, DW5 Baliram Mishra and DW6 Rajesh Pandey in support of its case. Thereafter, the statement of the appellant was recorded under section 313 of the Cr.P.C. After conclusion of the trial, the learned Trial Court convicted and sentenced the appellant in the manner indicated above.

6. The learned counsel for the appellant has submitted that the trial of case suffers from several infirmities that have been overlooked by the learned trial Court. Therefore, the impugned judgment is not sustainable in the eyes of the law. It has been argued that the appellant had just come to the shop of the informant (PW 5), from where the deceased and appellant went together to a village called Asahani for work. Afterward, they parted ways at Macchlihatta. It has been further argued that the time gap between the victim going missing and the recovery of her dead body is too long to apply the ‘last seen theory’. It has been contend