Hon’ble Raghvendra Kumar, J.—Heard learned counsel for the appellant and learned Additional Government Advocate for the State of U.P. and perused the lower Court record.

2. This Criminal Appeal under Section 372 Cr.P.C. has been instituted against the judgment and order dated 2.12.2010 passed by learned Additional Sessions Judge, Court No. 7 Deoria in Sessions Trial No. 175 of 2007 arising out of case crime No. 186 of 2006 under Section 302/34 IPC, PS Khampar, district Deoria, whereby the accused-respondents, Brigurashan, Sachchidannad, Munni Lal and Raghuvar have been acquitted.

3. From the perusal of the record and judgment, it is revealed that there was enmity between the complainant, Awdhesh Kushwaha and accused-persons, namely, Brigurashan, Sachchidannad, Munni Lal and Raghuvar with respect to the Abadi land. The accused-persons used to pressurize the complainant-informant to leave the land and not to give effect to the Panchnama. Panchnama materialized with the intervention of the village Pradhan and Panch. On 1.6.2006 at about 6.30 hours in the evening, the son of the complainant-informant, Chandrika was abducted by the accused-persons. On 4.6.2006 at 9.00 hours in the morning complainant received the information that the body of his missing son is hanging on a tree in Kukurghati. The complainant identified his son and suspected that the accused-persons have murdered his son and thereafter hung the dead body.

4. The FIR of the case was lodged on 4.6.2006 at about 11.45 P.M. with respect to the incident allegedly committed on 1.6.2006 at about 6.30 P.M. The prosecution has examined PW-1, Awdhesh Kushwaha, PW-2 Parmanand Kushwaha, PW-3 constable Khichdi Prasad, PW-4 Dr Nagendra Prasad, PW-5 Vanshidhar Singh-Sub Inspector and PW-6 Udai Pratap Yadav.

5. From the perusal of testimony of PW-1, Awdhesh Kushwaha, it is evident that he has not seen the incident himself. PW-2, is said to be the eye-witness. His testimony is confined only to the extent of deceased being lastly seen in the company of accused, Sacchidanand on his bicycle. When PW 2 moved forward then he saw the accused-persons Brigurashan, Sachchidannad, Munni Lal and Raghuvar at a distance of 10 to 15 paces, who were following the accued, Sacchidanand. PW-3, PW-4, PW-5 and PW-6 are the formal witnesses, they are not the witnesses of fact.

6. From the testimony of PW-2, it is revealed that he has conveyed the fact of seing the deceased with accused-Sacchidanand to the complainant, Awdhesh Kushwaha.

7. The learned Court below has considered that the deceased, Chandrika Kushwaha was lastly seen going on the bicycle of the accused- Sacchidanand, by PW-2-Parmanand Kushwaha. Permanand Kushwaha has narrated this fact to the complainant-informant-Awdhesh Kushwaha. The learned Court below has also considered the conduct of the complainant-informant that instead of immediately reporting the matter to the police, he preferred to search himself the deceased. Admittedly, there is an enmity between the complainant and accused persons with respect to the Abadi land. The learned Court below has also considered that there is a time gap between the last seen and the factum of death. This is a case of circumstantial evidence. Perusal of the FIR discloses the suspicion which the complainant had in his mind. The Court has mentioned that there might be motive for committing the offence on the basis of enmity, but the fact that there was altercation between the complainant-informant and the accused-persons before 15 days of the occurrence and also on 3rd June, 2006 has not been disclosed in the FIR. It is a strong circumstances that accused was having an enmity with the accused persons. There has been incident of altercation prior to the incident and in spite of this, the fact of having come to know about his son lastly going alongwith the accused, Sacchidanand, he did not prefer to inform the police. In a case based on circumstantial evidence, it has been held that following fac