Siya Ram Nishad (In Jail) vs State Of U.P.
2017 Latest Caselaw 4527 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 

 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 1172 of 2007
 

 
Appellant :- Siya Ram Nishad (In Jail)
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- In Person,B.K.Nigam
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Vikram Nath,J.

Hon'ble Daya Shankar Tripathi,J.

(Delivered by Hon'ble D.S. Tripathi, J.)

1. Appellant has assailed the judgment and order dated 12.04.2007 passed by Additional Sessions Judge/ Fast Track Court-III, Faizabad in Sessions Trial No. 09 of 2006 (State of U.P. Vs. Siyaram Tantrik and another) arising out of Case Crime No. 166 of 2005, under sections 302, 201 IPC, P.S. Taarun, District Faizabad, by which appellant has been convicted and sentenced to life imprisonment and fine of Rs. 4,000/- (in default of payment of fine, one year additional imprisonment) under section 302 IPC and imprisonment of three years and fine of Rs. 1,000/- (in default of payment of fine, two months additional imprisonment) under section 201 IPC.

2. Co-accused Tulsiram has been given benefit of doubt and acquitted from charge under sections 302, 201 IPC levelled against him, by the aforesaid impugned judgment.

3. Prosecution case, in brief, is that informant Ram Kripal Patel son of Kanhai Prasad Patel (Gram Pradhan), resident of Narayanpur, P.S. Taarun, Faizabad, submitted written Tahrir, Ext. Ka-9, in P.S. Taarun, District Faizabad, narrating therein that he had seen dead body of an unknown person on 02.11.2005 at 7:00 a.m. near village Jai Singh Mau Bade Bheet. Head and both the hands of dead body were amputated and not present there. It appears that murder has been committed by unknown persons in the previous night.

4. On the basis of aforesaid written Tahrir of informant, Chik FIR (Ext. Ka-9) was prepared and Case Crime No. 166 of 2005 was registered under sections 302, 201 IPC against the unknown persons on 02.11.2005 at 8:50 a.m. and entry of the case was made in the general diary of the police station. Investigation was taken up by Sub Inspector Ram Awadh Rao. Inquest report of dead body of the deceased was prepared alongwith Challan Lash, Photo Lash, letter to CMO, letter to R.I. etc. and dead body of the deceased was transmitted to mortuary for postmortem. Sample of plain and blood stained earth was taken by the Investigating Officer (hereinafter referred to as the ''I.O.') and the same was sent for chemical examination by Forensic Science Laboratory. Head and both the hands of the deceased were recovered from the pond situated near the place of occurrence. Autopsy on dead body of deceased was conducted and postmortem report (Ext. Ka-8) was prepared. Name of the accused Siya Ram Nishad and Tulsiram came into light during the course of investigation. appellant-accused was arrested by the I.O. KURTA, PAIJAMA, LUNGI and CHAPPAL of deceased were recovered at the instance of appellant-accused. Axe used in commission of crime and DHOTI were also recovered at the instance of the appellant-accused. Shirt and GAMCHA of appellant-accused were also recovered at his instance. Maps of place of occurrence and places of recovery were also prepared by the I.O. After recording statements of witnesses during the course of investigation, charge sheet (Ext. Ka-13) was submitted by the I.O., against the appellant-accused Siya Ram Nishad and co-accused Tulsiram under sections 302, 201 IPC.

5. Charges under sections 302, 201 IPC were framed by the trial court against both the accused persons. Accused denied the charges levelled against them and claimed for trial.

6. As many as 12 witnesses have been examined by the prosecution and 3 court witnesses were also examined.

7. PW 1 Ram Laut Kannaujiya and PW-2 Sunil Singh have proved that I.O. had taken sample of plain and blood stained earth from the place of occurrence and recovery memo (Ext. Ka-1) was prepared and they have also proved their signature on the same.

8. PW-3 Ram Sakal Prajapati has deposed that he had taken out both the hands and head of the deceased from pond situated near the place of occurrence, on the direction of I.O.

9. PW-4 Ram Kripal Patel has proved the written Tahrrir (Ext. Ka-2).

10. PW-5 Salikram and PW-6 Ram Murti have been examined by the prosecution, before whom recovery of both the hands and head of the deceased are said to have been made. But both the witnesses have not supported the prosecution version and they have been declared hostile.

11. PW-7 Kapil Singh has been examined, who has deposed that KURTA, PAIJAMA, LUNGI and CHAPPAL of the deceased were recovered at the instance of appellant-accused and recovery memo (Ext. Ka-3) was prepared by the I.O. in his presence.

12. PW-8 Virendra Singh has supported the version of PW-7 and proved the recovered articles (Material Ext. 1 to 5).

13. PW-9 Arvind Singh has deposed that axe used in commission of crime and DHOTI were recovered at the instance of appellant-accused, in his presence and recovery memo (Ext. Ka-6) was prepared by the I.O. He has also proved the recovered articles (Material Ext. 6 and 7).

14. PW-10 Babu Lal has deposed that shirt and GAMCHA of appellant-accused were recovered at his instance, which were worn by him at the time of commission of crime. He has also deposed that recovery memo (Ext. Ka-6) was prepared by the I.O. and he has also proved the recovered articles (Material Ext. 6 and 7).

15. PW-11 Dr. Ram Kishore has deposed that he had conducted autopsy on dead body of deceased on 02.11.2005 at 4:00 P.M. Both the hands and head of the deceased were separate from the body. Following ante-mortem injuries were found on the dead body of deceased:-

"(1) I/W 6.0 X 1.0 cm X Bone deep on the fore head 1.0 cm above the Rt. Eye brow. & fracture of frontal bone Rt. Side.

(2) Incised wound 9.0 X 1.0 X Bone deep on the Rt. Side of face including Rt. ear and 4.0 cm from Lt. margins of Rt. eye.

(3) I/W 4.0 1.0 cm X Bone deep on the Rt. occipital region 3.0 cm for midline.

(4) I/W 3.0 X 1.0 X Bone deep on Rt. Side of skull 3.0 cm below Injury No. (3).

(5) Permanent loose of head from the Body of neck.

(Amputated head at the base of neck. Amputated area 10.0 X 13 cm at the base of neck.)

(6) I/W 1 X 0.5 cm on the top of Rt. shoulder.

(7) I/W 4.0 X 1.0 X muscle deep at lower end of Rt. Fore arm 5.0 cm above from limb.

(8) I/W 6.0 1.0 cm X muscle deep on the back of Rt. wrist joint.

(9) Amputated Lt. Upper arm at the lower end of arm at elbow joint amputated area is 10.0 cm X 7.0 cm.

(10) Amputated Rt. sided upper arm at elbow joint. amputated area is 10. X 8.0 cm."

He has opined that the ante-mortem injuries were possible to have been inflicted by axe and the occurrence might have taken place before 12 to 15 hours and death of the deceased is possible due to shock and hemorrhage, as a result of ante-mortem injuries. He has proved that post mortem report (Ext. Ka-8) was prepared by him in his handwriting and signature.

16. PW-12 Head Constable Jai Nath has proved Chik FIR (Ext. Ka-9) and carbon copy of general diary (Ext. Ka-10).

17. CW-1 Meena has been examined, who has deposed that the appellant-accused had forcibly taken her away and kept her in his house for one and half years and she was present in his house at the time of occurrence. She has also stated that appellant-accused and deceased used to sit together and appellant-accused had gone with deceased to somewhere for three days and thereafter deceased was murdered by appellant-accused. She has further stated that the appellant-accused had accepted his guilt before the police.

18. CW-2 Shyam Lal has been examined, who is father of CW-1. He has deposed that the appellant-accused had taken away his daughter and after the occurrence he had re-married his daughter.

19. CW-3 S.I. Ram Awadh Rao has been examined, who is I.O. of the case. He has deposed that investigation of the case was conducted by him. He has further stated that he had inspected the place of occurrence and maps of place of occurrence and recovery place (Ext. Ka-10A and Ka-11) were prepared by him. He has further stated that sample of plain and blood stained earth was taken by him. He has also stated that KURTA, PAIJAMA, LUNGI and CHAPPAL of the deceased were recovered at the instance of appellant-accused and its recovery memo was prepared by him. He has further stated that blood stained axe and one piece of male DHOTI were recovered at the instance of appellant-accused and recovery memo was prepared by him. He has further stated that clothes of appellant-accused were recovered at his instance and recovered articles were deposited by him in the police station, relating to which entry was made by him in the G.D. (Ext. Ka-12). He has further stated that recovered articles were sent by him for chemical examination by Forensic Science Laboratory. He has further stated that statement of witnesses were recorded by him during the investigation and charge sheet (Ext. Ka-13) was submitted by him against both the accused.

20. Statement of accused persons under section 313 Cr.P.C. were recorded by the trial court. Accused persons stated that the statements of witnesses are false and they have been falsely implicated in this case.

21. No defence evidence has been examined on behalf of accused persons.

22. After giving opportunity of hearing to both the parties, judgment and order dated 12.04.2007 was passed by the learned trial court convicting and sentencing the appellant-accused Siya Ram Nishad with life imprisonment and fine of Rs. 4,000/- (in default of payment of fine, one year additional imprisonment) under section 302 IPC and imprisonment of three years and fine of Rs. 1,000/- (in default of payment of fine, two months additional imprisonment) under section 201 IPC.

23. It is this impugned judgment and order of conviction and sentence passed against appellant-accused Siya Ram Nishad, which is under challenge to this criminal appeal.

24. We have heard rival arguments advanced by Sri Vijay Kumar Advocate (Amicus Curiae) appearing on behalf of appellant, Sri U.C. Verma, learned AGA and perused the material placed on record.

25. Admittedly, this is not a case of direct evidence of any eye witness. This case is based on circumstantial evidence. It is settled principles of law that every accused is presumed to be innocent, unless the guilt is proved against him. In fact, the prosecution has to prove its case beyond reasonable doubt. In the case of circumstantial evidence, the burden on prosecution is always greater. The circumstantial evidence can be reasonably made the basis of conviction against an accused, if it is of such a character that the same is wholly inconsistent with the innocence of the accused and is consistent only with his guilt.

26. In Kanhai Mishra @ Kanhaiya Misar Vs. State of Bihar reported in 2001 (42) ACC 696, it has been held by the Apex Court that:

"4. It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In a case of circumstantial evidence the whole endeavour and effort of the court should be to find out whether the crime was committed by the accused and the circumstances proved from themselves into a complete chain unerringly pointing to the guilt of the accused."

27. In Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622, it has been held by the Apex Court that while dealing with circumstantial evidence, onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are:

"(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must or should' and not ''may be' established;

(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) the circumstances should be of a conclusive nature and tendency;

(iv) they should exclude every possible hypothesis except the one to be proved; and

(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

28. In Krishnan Vs. State represented by Inspector of Police reported in (2008) 15 SCC 430, it has been held by the Apex Court that:

"This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

29. In Majendran Langeshwaran Vs. State (NCT of Delhi) and Anr. reported in AIR 2013 SC 2790, it has been held by the Apex Court that circumstantial chain of events should cumulatively point towards the guilt of the accused alone. Relevant portion of the report is reproduced below:-

"To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person"

30. In the light of the aforesaid principles laid down by the Apex Court, circumstantial evidence adduced by the prosecution in this case, is required to be scrutinized.

31. Perusal of impugned judgment and order passed by the trial court indicates that the conviction against the appellant-accused has been based on following events of circumstantial evidence:-

(1) The appellant-accused used to perform TANTRA MANTRA and in furtherance of completion of TANTRA MANTRA, he had murdered the deceased for offering sacrifice.

(2) CW-1 Meena is said to be witness of last seen. She has stated that appellant-accused had gone to somewhere alongwith deceased before three days from the date of occurrence.

(3) CW-1 is stated to be witness of extra-judicial confession made by the appellant-accused before the police.

(4) Recovery of axe used in commission of crime is said to have been made at the instance of the appellant-accused.

(5) Recovery of clothes of the deceased is said to have been made at the instance of the appellant-accused.

(6) Recovery of clothes of appellant-accused is said to have been made at his instance, which are said to have been worn by the appellant-accused at the time of commission of crime.

32. As far as motive alleged against the appellant-accused is concerned, it is settled principle of law that motive has no major role to play in cases based on eye witness account, but its role is important in the cases of circumstantial evidence.

33. In Pannayar Vs. State of Tamil Nadu by Inspector of Police reported in (2009) 9 SCC 152, it has been held by the Apex Court that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused.

34. In Rishipal Vs. State of Uttarakhand reported in 2013 (81) ACC 442, it has been held by the Apex Court that motive is important factor in cases of circumstantial evidence.

Relevant portion of the report is reproduced below:-

"It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes important in cases that rest entirely on circumstantial evidence."

35. In the present case, dead body of the deceased is said to have been recovered from an open place. There is no evidence to this effect that there was any place of God or Goddess near the place from where the dead body of the deceased was recovered. There is also no evidence to this effect that there was any previous history of the appellant-accused for committing murder of any other person for the purpose of offering sacrifice. No family member of deceased has come out to depose that the deceased was murdered by the appellant-accused for the purpose of offering sacrifice. Considering the facts and circumstances of this case, alleged motive for committing murder of the deceased by the appellant-accused, appears to be very weak, which weighs in favour of the appellant-accused.

36. Next chain of circumstantial evidence is said to be last seen evidence of CW-1. This witness has deposed that she was taken away by the appellant-accused and kept by him in his house and she was present at his house at the time of occurrence. She has further stated that the appellant-accused had gone somewhere, alongwith the deceased for a period of three days and thereafter the deceased was murdered by him. It is not the case of prosecution that the appellant-accused was seen by any other witness in the company of the deceased, in close proximity of time and place when the deceased was murdered. In such a circumstance, how it can be ruled out that no other person appeared between the period when the appellant-accused is said to have gone from his house alongwith deceased before three days from the date of occurrence and the time when the deceased was murdered. It is also noteworthy that CW-1 has stated in her cross-examination that the appellant-accused used to beat her, hence she was having hatred against him. Further we find from the record that there is no statement of this witness under section 161 Cr.P.C. recorded by the I.O. This witness has also stated in her cross-examination that the I.O. had not interrogated her. In such circumstances, evidence of this witness does not appear to be natural, trustworthy and impeccable. Hence aforesaid evidence of last seen is not reliable.

37. In Mohibur Rahman and Anr. Vs. State of Assam reported in (2002) 6 SCC 715, it has been held by the Apex Court that circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.

38. In Arjun Marik and Ors. Vs. State of Bihar reported in 1994 Supp (2) SCC 372, it has been held by the Apex Court that solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded.

39. In Godabarish Mishra Vs. Kuntala Mishra and Another reported in (1996) 11 SCC 264, it has been held by the Apex Court that theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances.

40. In Bharat Vs. State of M.P. reported in (2003) 3 SCC 106, two circumstances on the basis whereof the appellant had been convicted were (i) the appellant having been last seen with the deceased and (ii) Recovery of ornaments made at his instance. It has been held by the Apex Court that:

".....Mere non-explanation cannot lead to the proof of guilt against the appellant. The prosecution has to prove its case against the appellant beyond reasonable doubt. The chain of circumstances, in our opinion, is not complete so as to sustain the conviction of the appellant...."

41. In State of Goa Vs. Sanjay Thakran and Anr. reported in (2007) 3 SCC 755, it has been held by the Apex Court that in the absence of any other corroborative piece of evidence to complete the chain of circumstances it is not possible to fasten the guilt on the accused on the solitary circumstance of the two being seen together.

42. In Bodh Raj alias Bodha and Ors. Vs. State of Jammu and Kashmir reported in (2002) 8 SCC 45, it has been held by the Apex Court that:

"The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases...."

43. In the light of aforesaid principles laid down by the Apex Court in the aforesaid cases, it is crystal clear that last seen evidence adduced by the prosecution in this case, is not of close proximity of place and time between the event of the accused having been last seen with the deceased and the time when occurrence is said to have taken place. Accordingly, evidence of last seen adduced by the prosecution does not inspire confidence to us.

44. Next chain of circumstantial evidence is said to be extra-judicial confession made by the appellant-accused before the police, in presence of CW-1. This witness has deposed in her examination-in-chief that after murder of the deceased, appellant-accused was arrested by the police and he had accepted that the deceased was murdered by him. This witness has stated in her cross-examination that police had beaten the accused and he had accepted his guilt due to fear. It is also alleged that a number of villagers were present, when the appellant-accused had accepted his guilt before the police, but no other witness except CW-1 has been examined to prove this fact of extra-judicial confession made by the appellant-accused. No statement of this witness has been recorded by the I.O. under section 161 Cr.P.C and she has also accepted in her cross-examination that she was not interrogated by the I.O. She has further stated that she was having hatred against the appellant-accused, because he used to beat her. In such circumstances, evidence of alleged extra-judicial confession made by the appellant-accused before the police, does not appear to be trustworthy.

45. Next chain of circumstantial evidence is alleged that axe used in the commission of crime, was recovered at the instance of appellant-accused. PW-9 has been examined by the prosecution to prove the aforesaid chain of circumstantial evidence. This witness has deposed that the axe used in commission of crime and piece of DHOTI were recovered by the police, at the instance of the appellant-accused and recovery memo (Ext. Ka-6) was prepared. He has also proved the recovered articles axe and DHOTI (Material Ext. 6 and 7). This witness has accepted in his cross-examination that the accused was taken by the police to police station, before recovery and police came back alongwith accused after ten minutes. On the other hand CW-3 (I.O.) has stated in his cross-examination that after arrest of the accused, recovery of axe and DHOTI was made and thereafter he was brought to police station and it is wrong to say that the accused was brought to police station after arrest and recovery of articles were made after coming back from police station. Thus, there is material contradiction in statement of CW-1 and CW-3, on the point of aforesaid recovery. CW-3 (I.O.) has not proved that how name of appellant-accused came into light during the course of investigation and when he had arrested the appellant-accused. He has also not proved that the appellant-accused had given disclosure statement after arrest to get the axe recovered at his instance, which was used in commission of crime. Considering the aforesaid facts and circumstances of this case and material contradictions in prosecution evidence, alleged recovery of axe used in the commission of crime at the instance of appellant-accused, does not appear to be truthful.

46. Next chain of circumstantial evidence is said to be recovery of clothes of the deceased at the instance of appellant-accused. PW-7 and PW-8 have been examined by the prosecution to prove the aforesaid fact. PW-7 has deposed that KURTA, PAIJAMA, LUNGI and CHAPPAL of the deceased were recovered by the police at the instance of the appellant-accused, in his presence and he has proved his signature on recovery memo (Ext. Ka-3), but he has stated that the recovery memo was not written in his presence. He has further stated that something was written and it was directed to him that he is being made witness. PW-8 has deposed that KURTA, PAIJAMA, LUNGI and CHAPPAL (material Ext. 1 to 5) of deceased were recovered by the police, at the instance of the appellant-accused, in his presence. It is alleged that the recovered articles were sealed at the place of recovery. But both these witnesses PW-7 and PW-8 have accepted in their cross-examination that the recovered articles were not sealed before them. Considering the aforesaid facts and circumstances of this case and material contradictions in prosecution evidence, alleged recovery of clothes of deceased at the instance of the appellant-accused, also does not inspire confidence to us.

47. Next chain of circumstantial evidence is alleged that shirt and GAMCHA of appellant-accused was recovered at his instance, which were worn by him at the time of commission of crime. PW-10 has been examined by the prosecution to prove the aforesaid fact. He has deposed that the aforesaid articles were recovered by the police at the instance of appellant-accused and he has also proved recovery memo (Ext. Ka-6) and recovered articles (Material Ext. 6 and 7). It is alleged that the aforesaid recovered articles were sealed at the place of recovery. But this witness has accepted in his cross-examination that the recovered articles were not sealed by the police on the place of recovery. He has further accepted in his cross-examination that appellant-accused had not disclosed to police about the place where the recovered articles were concealed by him, in his presence. It is alleged that the recovered clothes were blood stained. But this witness has stated in his cross-examination that he had not seen blood on the recovered clothes. Considering the aforesaid material contradictions which appeared in the statement of this witness, aforesaid recovery at the instance of appellant-accused, does not appear to be trustworthy.

48. In the light of aforesaid discussions, it is evident that alleged motive of appellant-accused behind commission of crime is very weak. There is material contradiction in statement of prosecution witnesses. Evidence of last seen, extra-judicial confession, recovery of axe used in commission of crime at the instance of appellant-accused, recovery of clothes of deceased at the instance of appellant-accused and recovery of clothes of appellant-accused at his instance, appear to be doubtful and not trustworthy. It appears that the conviction of appellant-accused has been recorded by the trial court on the basis of suspicion. But suspicion howsoever strong is not enough to justify conviction of the appellant for murder. In doing so the trial court over looked the fact that there is a long distance between ''may have' and ''must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. Requirement to prove the case against the appellant-accused is that not only chain of circumstances should be proved against the accused beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences for which he has been charged.

49. For all the reasons mentioned hereinabove, we are of the considered opinion that the evidence adduced by the prosecution to establish the chain of events, is not of such a character that the same can be accepted to be wholly inconsistent with the innocence of the appellant-accused and consistent only with his guilt. Prosecution has failed to bring home the charges levelled against the appellant-accused beyond reasonable doubt. Accordingly, the impugned judgment of conviction and sentence passed by the learned trial court against the appellant-accused suffers from legal infirmity and is liable to be set aside.

50. Consequently, the appeal is allowed. Impugned judgment and order dated 12.04.2007 passed by learned Additional Sessions Judge/Fact Tract Court-III, Faizabad, convicting and sentencing the appellant under sections 302, 201 IPC is set aside. Appellant Siya Ram Nishad is acquitted from the charge levelled against him.

51. Appellant Siya Ram Nishad be released forthwith, in case he is not detained in any other case.

52. A copy of this judgment be communicated to the trial court concerned and record of the trial court be sent back forthwith, which shall be preserved by the trial court.

Order Date :- 16.09.2017

SR

Case :- CRIMINAL APPEAL No. - 1172 of 2007

Appellant :- Siya Ram Nishad (In Jail)

Respondent :- State Of U.P.

Counsel for Appellant :- In Person,B.K.Nigam

Counsel for Respondent :- Govt. Advocate

Hon'ble Vikram Nath,J.

Hon'ble Daya Shankar Tripathi,J.

Dr. B.K. Nigam, Advocate was appointed as Amicus Curiae, but is he not present today and from the order sheet it appears that on previous date also, he was not present.

We, accordingly, appointed Sri Vijay Kumar, Advocate, as Amicus Curiae.

Heard Sri Vijay Kumar, learned Amicus Curiae and Sri U.C. Verma, learned AGA for the State.

Appeal is allowed. Impugned order of conviction and sentence is set aside. Judgment on separate sheets.

Office shall pay remuneration of Rs. 5500/- to Sri Vijay Kumar, learned Amicus Curiae holding Advocate Roll No. B/V 0096, U.P. Registration No. 8368/2003.

The case diary which was available on record in a sealed packet was opened and perused by the Court to find out as to whether during the investigation the statement of CW-1 Smt. Meena was recorded by the Investigating Officer or not. After perusal, the case diary has been directed to be put in a packet and sealed again.

Order Date :- 16.9.2017

SR