Point of Law : Accused could not be unpunished, more particularly, when the blood stains found were of human origin and it is an undisputed position in the present case, as per the FSL report that the blood was disintegrated and the blood which was found on the clothes of the appellant was human blood.

JUDGMENT :

Manish Kumar, J.

1. This criminal appeal has been filed by the appellant against the judgment and order dated 16.01.2010 passed by the Additional Sessions Judge, Ambedkar Nagar in Sessions Trial No. 24 of 2003, arising out of Crime No. 192 of 2002 under Section 302/34 of the Indian Penal Code (hereinafter referred to as, the IPC), registered at Police Station Kotwali Tanda, District Ambedkar Nagar convicting the appellant Sandeep @ Pintu and sentencing him for imprisonment for life.

2. Heard Shri Anil Kumar Tiwari, learned counsel for the appellant and Shri Umesh Verma, learned AGA for the State and perused the impugned judgment and order passed by the trial court and also the lower court record.

3. As per the prosecution case, on 02.09.2002, an FIR was lodged by the complainant, who is the brother of the injured/deceased under Section 307 IPC which was subsequently, converted to Section 302 IPC on 03.09.2002 against the appellant and one unknown person stating therein, that on 02.09.2002, his younger brother Aditya Kumar left the home at 8.00 PM for attending some party. At around 9.45 PM, he came home with injuries on his body and on inquiring about the injuries, it was told by him that "right now Sandeep @ Pintu (present appellant) and one unknown person stabbed him by knife near Atithi Villa". There were injuries on the chest and other parts of the body of the injured.

4. After investigation, the charge sheet was filed under Section 302/34 IPC in the Court against the present appellant and one accused person namely, Saurabh Srivastava.

5. The trial court framed charges against the co-accused Saurabh Srivastava and Sandeep @ Pintu (present appellant) under Section 302/34 IPC. The accused persons denied the charges and claimed to be tried.

6. The prosecution in order to prove its case examined Atul Kumar Gupta, the friend of the deceased as PW-1, Kamlesh Kumar, the complainant and the brother of the deceased-Aditya Kumar as PW-2, Anil Kumar Gupta, owner of the Juice Corner as PW-3, Vijay Shanker Singh, witness of recovery as PW-4, Kaushal Kishore, witness of recovery as PW-5, Inspector Sarnath Singh as PW-6, Dr. Atal Verma as PW-7, SI J.K. Singh as PW-8, SI Ramesh Chand as PW-9.

7. As documentary evidence, the prosecution has proved a copy of the FIR as exhibit Ka-1, Chik Shankhya 125/02 as exhibit Ka-15, Report No. 42 for lodging the FIR and registering the Case Crime No. 192 of 2002 in Rojnamacha Aam as exhibit Ka-16-carbon copy, Report No. 20 in Rojnamcha Aam for conversion of the case from Section 307 to Section 302 IPC as exhibit Ka-17-carbon copy, site plan as exhibit Ka-8, the blood-stained and plain soil and two pairs of slippers recovered as exhibit ka-2, the inquest report as exhibit Ka-9, photo of the body of the deceased challan nash, namoona mohar letter by CMO as exhibit Ka 10 and ka-14 respectively. The post mortem report prepared by Dr. Atal Verma in his hand writing and signature as exhibit Ka-7, the recovery memo of the knife recovered used in the crime as exhibit Ka-3, recovery memo of recovery of one pant, t-shirt (blood stained) as exhibit Ka-17. The recovery of blood stained one pant and t-shirt as exhibit Ka-4, the site plan of the place of recovery of knife recovered as exhibit Ka-5, the Charge sheet as exhibit Ka-6 and the FSL report as exhibit Ka 18.

8. The statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure (in short, the Cr.P.C.) wherein, they had denied the commission of crime and stated that the case has been registered falsely due to enmity and in connivance with the conspiracy of the persons against the appellant and also denied the recovery. It is not the case of the appellant that the trial court, while affording opportunity to the accused under Section 313 Cr.P.C. has not questioned him on any aspect of the evidence that would have caused any prejudice to him. It is equally not the case of the appellant that any material has gone unnoticed a