Point of law: prosecution in possession of the best evidence-CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.”

JUDGMENT :

Shashi Kant, J.

1. Above Jail Appeal has been preferred under section 383 of Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.') against the judgment and order dated 16.11.2006 passed by Additional Sessions Judge/Fast Track Court No.5, Kanpur Nagar in Sessions Trial No. 854 of 2003, arising out from the Case Crime No. 38A of 1994, under Sections 147, 148, 149, 302, 436 of Indian Penal Code (hereinafter referred to as 'IPC'), Police Station Babu Purwa, Kanpur Nagar, whereby though the appellant has been acquitted for the offence punishable under Section 436 IPC but has been convicted and sentenced for one year simple imprisonment under Sections 147 IPC, two years simple imprisonment under Section 148 IPC and imprisonment for life and fine of Rs. 10,000/- with default stipulation clause under Section 302/149 IPC.

2. Brief facts relating to the prosecution case are that :

2.1 On 10.02.1994 S.I. Mam Chand has lodged an oral first information report regarding lying of a burnt dead body at Khatikana Pasiyana, which was suspected to be murdered. On the above information, Case Crime No. 38A of 1994 under Sections 302, 436 IPC has been registered against unknown persons. Entry about registration of case was made in GD Rapat No.11 dated 10.02.1994 at 8.20 A.M. Investigation of the case was entrusted to SI Girivar Prasad Shukla PW-6, who rushed to the spot, prepared site plan (Exhibit Ka-4) on pointing out of SI Mam Chand. He also prepared inquest memo of the dead body (Exhibit Ka-5), recovery memo of shoe and ash (Exhibit Ka-6), Chalan Lash (Exhibit Ka-7), Samples of Seal (Exhibit Ka-8), Photo Naash (Exhibit Ka-9), report to C.M.O. (Exhibit Ka-10), report to SPO (Exhibits Ka-11 & Ka-12). He has also taken statement of witnesses. After post mortem examination, dead body was buried in Bagahi Graveyard on 10.02.1994. On 13.02.1994, wife of deceased namely Smt. Nagma Parveen (PW-1) submitted a written report (Exhibit Ka-1) to the Investigating Officer PW-6 stating therein that her husband late Nafees Ahmad and father Zakir Ali were working in Bulb Factory of one Kallu. On 09.02.1994, the atmosphere was tensed due to the murder of one Kala Baccha at 11.30 a.m. When her husband and father were coming to home then Pappu @ Banta, Makku, Manoj Kanja, Ramesh, Kamal and Girish Chandra Bajpai caught hold of her husband at 12:00 P.M. in the noon and after committing murder, burnt his body. Ahmad Ali and Mehboob, who were present there also witnessed the incident. Afraid from the incident, her father came to home and told her about the incident. The dead body buried on 10.02.1994 at Bagahi Graveyard was of late Nafees Ahmad. Due to fear and curfew, she could not reach to the Police Station.

2.2 On the above information P.W.6 has recorded the statement of Smt. Nagma Parveen P.W.1, Ahmad Ali P.W.2, Zakir Ali P.W.3 and Mehboob P.W.4. He has also taken other steps in furtherance of the Investigation.

2.3 After 24.02.1994, the case was transferred to CBCID and the investigation of case was taken by P.W.9, Inspector Devendra Nath Chaturvedi.

2.4 During investigation, I.O. S.I. Deonath Nath Pandey P.W.11 has found evidence only against the appellant Girish Chandra Bajpai and co-accused Pappu @ Banta, Rakesh Sonkar @ Makku and Ramesh @ Manoj Kanja and accordingly he filed charge sheet (Exhibit Ka-15) against them under Sections 147, 148, 149, 302 and 436 IPC.

2.5 The case was committed to the Court of Sessions and in due course transferred to the Court below. The Court below on 24.02.2004 framed charges under Sections 147, 148, 302/149, 436 IPC against the appellant, who denied the charges framed against him and claimed to be tried.

2.6 To prove its case, the prosecution has examined wife of the deceased Smt. Nagma Parveen P.W.-1, brother of the deceased Ahmad Ali P.W.-2, father-in-law of the deceased Zakir Ali P.W.-3, eye-witnesses Mehboob P.W.-4, Dr. Irshad Ali P.W.-5, First Investigating Officer SI Girivar Prasad Shukla P.W.-6, Hazi Mohd. Ahm