Hon’ble Raghvendra Kumar, J.—Heard learned Additional Government Advocate for the State of U.P.

2. The application for leave to appeal has been instituted against the judgment and order dated 1.9.2005 passed by the Additional Sessions Judge, Fast Track Court No. 1, Meerut in Sessions Trial No. 244 of 2000, whereby acquitting the accused, Shahjad and Videsh for the offence under Sections 364, 302 and 201 IPC and acquitting Udaiveer @ Vipin for the offence under Sections 302 and 201 IPC of Police Stations Parikshitgarh in Case Crime No. 291 of 1999, district Meerut.

3. The FIR reveals that on 6.9.1999, Swadesh was accompanied by accused, Shahjad and Videsh while he was going for depositing the electricity bill at Mawana. The FIR of the incident was lodged with the police on 21.10.1999. The accused, Shahjad and Videsh returned back to the village after four or five days. Upon querry with Shahjad and Videsh they did not reply satisfactorily. Thereafter, FIR was lodged by PW-1, Aneeta, wife of Swadesh.The FIR of the incident dated 6.9.1999 was lodged with the police on 27.10.1999 at 17.30 hours. Thereafter, the investigation of the case commenced after adhering with the procedure contemplated in the Code of Criminal Procedure. The investigation culminated into filing of charge-sheet against the accused Shahjad and Videsh in Case Crime No. 291 of 1999 under Sections 364, 302 and 201 IPC, P.S. Parikshitgarh, District-Meerut.

4. After complying with the procedural mandate, the case of accused persons was committed to the Court of Sessions. Thereafter, charge was framed by the learned trial Court. The cognizance against accused Udaiveer @ Vipin was taken by the Court vide order dated 29.6.2002 under Section 319 Cr.P.C. and accordingly, charge was framed against him.

5. The prosecution examined PW 1 Smt. Aneeta, wife of Swadesh, PW 2 Indrapal, PW 3 Rafal Singh, PW 4 Rajbir Singh, PW 5 S.I., Rakesh Kumar, PW 6 S. I., Govind Singh, PW 7 Ravindra Kumar Sharma and PW 8 S.I., Raj Bahadur Singh.

6. After conclusion of the prosecution evidence, the statements of accused persons were recorded under Section 313 Cr.P.C. Accused Shahjad and Videsh stated under Section 313 Cr.P.C. that they will lead evidence in defence. Udaiveer @ Vipin refused to lead any evidence in defence. The statement of witness Rajbir Singh recorded in Case No. 353 of 1997 (State v. Udaiveer) under Section 324, 323, 504, 506 IPC, P.S.Parikshitgarh in the Court of A.C.J.M. II, Meerut has been filed. Copy of the judgment of Criminal Case No. 183 of 1999 (State v. Udaiveer and others) under Section 323, 324, 504, 506 IPC, P.S.Parikshitgarh has been filed. The photocopy of FIR of Case Crime No. 198 of 1999 under Section 506 IPC, P.S. Parikshitgarh, District-Meerut has been filed and copy of application addressed to D.I.G., Meerut Zone, Meerut dated 30.7.1999 signed by Videsh Kumar has been filed.

7. After hearing the arguments the learned Additional Sessions Judge/Fast Track Court, Court No. 1 recorded the findings of acquittal against the accused persons in Sessions Trial No. 244 of 2000, State v. Shahzad and others, under Sections 364, 302 and 201 IPC, P.S. Parikshitgarh, District-Meerut.

8. It has been stated in the FIR that Swadesh, the husband of informant while going to Mawana for depositing the electricity bill was accompanied by accused Shahjad and Videsh, who have come back after 4 or 5 days and presuming it for argument sake to be true, much reliance cannot be placed. There should always be proximity of the last seen of the accused alongwith deceased whereas, the incident dated 6.9.1999 was reported to the police on 27.10.1999 at 17.30 hours by lodging the FIR. Thus, the simple principle can be deduced that there should be proximity of last seen evidence against the accused and death of Swadesh in the instant case mere on the sole evidence of last seen of the accused, may not be conclusive for drawing an inference against the accused in absence of other connec