Neutral Citation No. - 2019:AHC:31538-DB AFR Reserved on : 02.01.2019 Delivered on :15.02.2019 Court No. - 34 Case :- JAIL APPEAL No. - 3965 of 2013 Appellant :- Daryao Singh Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Arvind Kumar Srivastava (A.C.),M.C. Singh Counsel for Respondent :- A.G.A.

Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J.)

1. This Jail Appeal has been filed by accused-appellant Daryao Singh through Superintendent of Jail Agra against common judgement and order dated 04.11.2006 / 7.11.2006 passed by Additional Sessions Judge, Court No. 6, Agra in Sessions trial No. 237 of 2002 (State v. Daryao Singh) under Section 302 IPC read with Section 34 IPC, Police Station, Khera Gargh, District Agra convicting accused- appellant Daryao Singh and sentencing him to undergo life imprisonment but acquitted the accused-Ramesh in Sessions Trial No. 28 of 2002 (State v. Ramesh), Police Station, Khera Gargh, District Agra.

2. Factual matrix of the case as emerging from First Information Report (hereinafter referred to as “FIR”) as well as material placed on record is as follows.

3. An FIR Ex.Ka-9 dated 06.08.2001 was presented in Police Station Khera Gargh, District Agra by Informant PW-1 Teekam Singh, alleging that in the night of 05.08.2001 at about 9:00 PM, he himself and his brother Bangali was present in the house, accused-appellant Daryao Singh and one Bachhu took him from the house on the pretext that Ramesh (brother-in-law) had come with truck parked at hut of Bachchu and called upon Bangali at Madaiya. On 6.8.2001 at about 11:00 AM, he had gone to his field and seen his aunt Jaggo Devi weeping and screaming in Madaiya, he also arrived there and seen that dead body of Bangali was lying down with blood there. Bachchu his wife and Ramesh found absent therefrom. Accused-appellant Daryao was also absent from his house. It was suspected by the informant that his brother Bangali was murdered by accused Daryao, Bachchu and Ramesh. Thereafter, he went to his village and told his family members. Lekhraj and Rajendra Singh of the same village told him that at about 2:00 AM they were going towards their field, they had seen the truck of Ramesh standing there and Bachchu his wife and Daryao Singh were boarding on the truck. Informant had gone to police station for furnishing information. FIR further recites that dead body of Informant's brother Bangali was lying in the Madaiya of Bachchu.

4. On receipt of written report Ex.Ka-1, Chik Report Ex.Ka-9 was prepared by Constable Mohan Lal, who registered the case under Section 302 IPC as Case Crime No. 204 of 2001. An entry of case was made in General Diary on 6.8.2001 at 13:00 PM, a copy of which is Ex.Ka-10 on record. Immediately after registration of case, investigation was undertaken by PW-5 Sri Rama Shanker Singh, the then Station House Officer at Police Station Khera Garh, who took copies of written report and Chik FIR and proceeded to place of occurrence. He recorded statements of Informant, Constable Mohan Lal. PW-5, Investigating Officer (hereinafter referred to as “I.O.”), prepared site plan Ex.Ka-7 and he prepared inquest report Ex.Ka-2, dead body was duly sealed and sent for postmortem to District Hospital Agra along with letter of request Ex.Ka-3 to Chief Medical Officer and other necessary papers relating thereto. Thereafter he took simple earth, bloodstained earth, prepared memo Ex.Ka-8 under his instructions.

5. Autopsy over the dead body of deceased Bangali was conducted by PW-6 Dr. B.K. Singhal, Medical Officer, District Hospital Agra on 07.08.2001 at about 02:00 PM. On external examination, deceased was found of average body built, aged about 27 years, rigor mortis had passed through both extremities and decomposition started pealing of skin is present. In the opinion of doctor, death had occurred about two days before at the time of autopsy and death was due to shock and hemorrhage as a result of anti-mort