Court No. - 42

Case :- GOVERNMENT APPEAL No. - 34 of 2019

Appellant :- State of U.P.

Respondent :- Anoop And 2 Ors.

Counsel for Appellant :- G.A.

Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

Re: Criminal Misc. Application (Leave to Appeal)

1. Heard Sri Kailash Prakash Pathak, learned AGA appearing for the

appellant-State of UP and perused the record.

2. Present government appeal has been preferred against the judgement

and order dated 15.10.2018 passed by the Additional Sessions Judge,

District Kasganj in Session Trial No. 157 of 2015 (State of UP vs. Anoop

and another) along with connected Sessions Trial No. 216 of 2015 (State

of U.P. vs. Mahesh) arising out of Case Crime No. 222 of 2015, under

Sections 342, 302, 201 IPC, P.S. Kotwali Kasganj, District Kasganj,

whereby the accused persons, who are three in number, have been

acquitted from the charges levelled against them.

3. Prosecution story, in nutshell is that on the basis of an application

moved by the complainant Viresh Kumar, a first information report was

registered on 14.4.2015 at 11:00 hours at P.S. Kasganj, District Kasganj

alleging therein that he is residene of village Nadarma, Police Station

Sikandarpur, District Kasganj. The younger son Brijesh Kumar Bharadwaj

s/o of Sri Gangadeen (chachiya sasurn of his brother Muklesh) lived at his

home for the past four years. Brijesh Kumar got an agreement of land with

one Omshiv s/o Shrinath. Omshiv could not pay the money in time, due to

which land of Omshiv measuring 8 bigha was registered in the name of

Brijesh Kuamr. Thereafter, Anoop s/o Rajendra @ Rajju (brother-in-law of

Omshiv) (accused no. 1herein) and Mahesh (accused no. 2 herein) made

pressure upon Brijesh that the land is his ancestral land, as such he may do

sale deed in their favour, but Brijesh did not do that and he got sale deed

registered in favour of one Shilendra in the year 2011. Since then the

accused persons kept enmity with him, therefore, Brijesh started living

with him. Before one year of the incident, accused Anoop asked one Sunil

Kumar Mishra after calling him at his home that he may take Rs. 50,000/-

to 1,00,000/- from meeting Brijesh but Sunil denied the same. Sunil

narrated this story to all the villagers. On 10.04.2015 Brijesh went from

his house saying that he was going to the house of his elder brother-in-law

Rajesh Mishra. On 11.4.2015 Brijesh said on telephone that he was

coming by train of 3:00 hours and he would reach Patiyali, but when he

did not reach on the said date and time, on 13.4.2015 he along with his

relatives Satish Poorn and others arrived at PS Kasganj in search of Brijeh.

In the meantime, they got information that one dead body was found near

the tubewell of of Hodiya of the city, which was sent for post-mortem at

Etah. They went to Etah and in the mortuary they recognized the dead boy

as Brijesh. The complainant got information that accused Anoop and

others caught hold of Brijesh and beat him and took him towards their

house. From CCTV footage dated 11.4.2015 it is evident that Anoop and

other accused persons took him and on 13.4.2015 they committed the

murder of Brijesh. On the basis of said information, a first information

report was lodged.

4. In support of prosecution case, PW-1 Viresh Kumar, PW-2 Sunil

Kumar, PW-3 Shilendra, PW-4 Raj Kishore, PW-5 Dr. P.K. Srivastava,

PW-6 Chandra Prakash, PW-7 Satish Chandra, PW-8 Anil Kumar, PW-9

CO Vijay Bahadur Singh, PW-10 Retired SI Daan singh and PW-11 Raj

Kamla were produced and examined before the Court below.

5. The judgement of acquittal has been passed by the Court below on the

ground that it is a case of circumstantial evidence and the motive of the

crime could not be proved conclusively, inasmuch the sale deed in favour

of some other person was executed in the year 2011 whereas the offence

had taken place in the year 2015 and the first information report was

admittedly filed mainly on the basis of a CCTV footage of a shop