Hon'ble Rakesh Tiwari,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(By Hon'ble Vijay Lakshmi, J.)

This government appeal under Section 378 Cr.P.C. has been preferred on behalf of State of U.P. challenging the judgment and order dated 09.09.2014 passed by the learned Additional District & Sessions Judge, Court No. 15, Bulandshahr in S.T. No. 931 of 2010 (State Vs. Kaluwa) whereby acquitting the accused respondents from the charges levelled against them.

Heard Km. Meena, learned A.G.A. on behalf of the appellant-State and perused the impugned judgment.

The prosecution story, in brief, is that on 4.6.2000 a written report was lodged by the informant Vijay Pal at Police Station Shahpur, district Muzaffar Nagar to the effect that his brother Karn Giri used to ply a Jugarh between the village Goyala to Mandavali to earn his livelihood. On 30.5.2000 at about 2.00 P.M. accused Yogesh Kumar, Brahmjeet alias Bittu and Kayyum had hired his brother's Jugarh and had taken him away with them. When his brother did not return, the informant searched for him and lodged the F.I.R. apprehending therein that his brother might have been abducted by the accused persons with a view to kill him.

On the basis of this written report, a criminal case was registered at Crime No. 87 of 2000 under Section 364 I.P.C. against the accused persons and the matter was investigated. During investigation, it was found that on 1.6.2000 before lodging of the F.I.R. in this case, dead body of an unknown male had been recovered by the police at village Goyala which was cremated as unclaimed by the police after its inquest and post mortem examination. The police had kept the clothes worn by that unknown deceased. On 6.6.2000 Smt. Suman Devi, wife of Karan Giri identified those clothes as that of her husband. The I.O. recorded the statement of Suman Devi and the statements of other witnesses, prepared the site plan and after conclusion of the investigation, submitted charge-sheet under Sections 364, 394, 302 and 411 I.P.C. against all the accused persons named in the F.I.R.

The prosecution in order to prove its case produced 11 witnesses, out of which only 3 witnesses were of fact and the remaining were of formal character. However, Suman Devi, the wife of deceased, who had allegedly identified the clothes of her deceased husband was not produced in the court by the prosecution.

On conclusion of the prosecution evidence the defence adduced documentary as well as oral evidence. As documentary evidence the defence produced the copy of the telegram sent to District Judge, Muzaffar Nagar and S.S.P., Muzaffar Nagar mentioning that the police had arrested the accused persons from their home. The defence also produced certified copy of the judgment dated 4.10.2006 passed by Additional Sessions Judge/F.T.C. Court no. 1 in S.T. No. 848 of 2000 (State Vs. Brahmjeet) under Section 307 I.P.C., Police Station Ratanpuri and certified copy of the statements of P.Ws. 1 and 2 recorded in the aforesaid sessions trial. In oral evidence the defence produced Surendra Prasad Goyal, Senior Account Officer, Mobile Section, Shiv Chowk, Muzaffarnagar.

The learned trial court after appreciating the entire evidence available on record, found the prosecution case doubtful and acquitted all the accused persons.

Aggrieved by the aforesaid decision, the State has challenged its legality and correctness on the ground that the learned trial court has not properly appreciated the prosecution evidence and has decided the cases on the basis of surmises and conjectures.

After hearing learned A.G.A. and on a careful consideration of the impugned judgment, it appears that the statement of the witness, who has lastly seen the accused persons with the deceased, has been taken by the I.O. after 2 months of the occurrence and the I.O. has not given any explanation for such inordinate delay in recording the statement of a most important witness i.e. witness of last seen, in this case. The wife of the deceased Smt. Suman Devi

Click Here to Read the rest of this document