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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
VIKAS KUNVAR SRIVASTAV, ANIL KUMAR, JJ.
Ram Pratap Pandey - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 777 of 2017
Decided On : 04-04-2019
Penal Code, 1860 – Section 302, Section 201 – Murder – Ante mortem injuries – Strangulation resulting in asphyxia – Appeal against conviction – Held, On basis of last seen theory/circumstantial evidence, the guilt o the accused-appellant has not been established and proved beyond all reasonable doubt – Not appropriate to discuss/adjudicate the argument as raised by learned counsel for parties in respect to the recovery of weapon and motive involved in the present case – Criminal Appeal allowed. (Para 32, 33)
Evidence Act in 2000, Section 65A and 65 B– Computer generated electronic records in evidence are admissible at trial if proved in the manner specified by Section 65B of the Evidence Act. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65B. Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act. (Para 127)
Facts of the Case:
Accused killed by the accused-appellant only because he had refused to marry his second daughter with second son/Dadani of accused-appellant.
Finding of Court:
On basis of last seen theory/circumstantial evidence, the guilt o the accused-appellant has not been established and proved beyond all reasonable doubt – Not appropriate to discuss/adjudicate the argument as raised by learned counsel for parties in respect to the recovery of weapon and motive involved in the present case.
Result: Criminal Appeal allowed
JUDGMENT :
ANIL KUMAR, J.
1. Heard Sri Vinod Kumar Singh, learned Senior counsel assisted by Sri Ashok Kumar Singh ‘Pankaj’ learned counsel for appellant, Smt. Smriti Sahay, learned A.G.A. and perused the record.
2. Present appeal has been filed against the judgment and order dated 03.05.2017 passed by Additional Sessions Judge/F.T.C. First, District Gonda in Sessions Trial No. 374/2010 (State Vs. Ram Pratap Pandey) Police Station Kotwali Dehat, District Gonda convicting and sentencing the appellant under Section 302 I.P.C. for life imprisonment and fine of Rs. 10000/-and in default of payment of fine one year further simple imprisonment, under Section 201 I.P.C. for a period of three years imprisonment and fine of Rs. 1000/-and in default of payment of fine one month further simple imprisonment. The conviction will go on simultaneously.
3. As per the case of the prosecution on 29.01.2010, Ram Shekhar Dubey Village – Luvava, Thana – Kotwali Dehat, Gonda had informed that dead body of an unknown person is lying in the north ridge of sugarcane field of Suresh Chandra S/o Awadh Bihari.
4. After receiving the said information, a F.I.R. under Section 302 I.P.C. was registered in Thana -Kotwali Dehat, Gonda as Crime No. 28/2010, P.W. -8/S.I. Mahendra Pratap Pandey (Retd.) went for preparing inquest report, which he prepared in presence of Jokhan Lal, Ajay Kumar Saroj, Shayam Bihari Mishra, Juggi Lal Mishra and Jagdamba Prasad Mishra. While conducting inquest of dead body, a bus ticket was found from Gosaiganj to Gonda in the pocket of the shirt of the deceased.
5. Thereafter, dead body was sent for postmortem to mortuary Gonda with the papers. Dr. D.K. Singh conducted the postmortem on 29.01.2010 at 04.20 p.m.
6. As per the postmortem report the probable time of death was about one day before the postmortem. The ante mortem injuries as mentioned therein are as under:-
“1. Antimortem Ligature mark at the level of mouth all around fact and back of neck 2 cm wide. Both side of face ligature mark is just below both ear lobule.
2. Multiple abrasion over Rt. Upper arm and upper part of Rt. Forearm varying from 7 cm X 3 cm to 4 cm X 3 cm.
3. Multiple abraided contusion over antero lateral aspect of neck and chin varying from 8 cm X 2 cm upto 5 cm X 2 cm.
4. Abrasion multiple over upper part of chest varying from 6 cm X 3 cm to 4 cm X 3 cm.”
7. In the report, it is mentioned that abdomant/stomach consist of alcohol, undigested food of 150 gm.
8. The probable cause of death is informed by the doctor conducting postmortem is due to strangulation resulting in asphyxia.
9. Later on, father of the deceased/Raghunath Sahay Tiwari and Bhagwat Prasad Tiwari (nephew) who were already searching of deceased/Devi Prasad Tiwari who did not return to home from the house of the accused situated in village Kalyanpur Majre Bankatwa, District – Gonda when he went in the morning of 28.01.2010 and expected to come in the evening of same day, received information on 02.02.2010 of a dead body found in the said locality. They reached the Kotwari Dehat Gonda on 02.02.2010 where cloths terms on the dead body and photograph, they recognized the dead body to be of Devi Prasad Tiwari.
10. In view of the abovesaid facts on 02.02.2010, Section 201 I.P.C. was added in the F.I.R.
11. On 08.02.2010 the accused-applicant/Ram Pratap Pandey was arrested at about 04.00 p.m. and on his confessional statement, and pointing out the place where he had hidden the Gamchha and plastic rope by which he committed the crime, it was found on the leading of the accused. The I.O. prepared to proceed there. Investigating Officer while proceeded towards the spot, in the midway, stopped two passengers boarded on the Jeep going to Faizabad, namely, Sant Prasad Kanaujiya and Lallan Prasad Tiwari and took them with him for the spot of incident. In their presence the Investigating Officer on the other side of the sugarcane filed where initially body of the deceased was found on 29.01.2010, recovered a Gamchha a
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