Sokendra And Another vs State Of U.P.
2021 Latest Caselaw 11458 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						       A.F.R.
 
						       Court No. - 48
 
Reserved on: 10.11.2021
 
						       Delivered on: 10.12.2021
 

 
				   CRIMINAL APPEAL No.- 6075 of 2006
 

 
Appellant :- 		   	Sokendra and Another
 
Respondent :- 		   	State of U.P.
 
Counsel for Appellants :-	Desh Ratan Chaudhary, Birendra 					   	Singh Khokher
 
Counsel for Respondent :- 	AGA
 
					With
 
				  CRIMINAL APPEAL No. - 5482 of 2006
 

 
Appellant :- 			Pawan
 
Respondent :- 			State of U.P.
 
Counsel for Appellant :- 	Desh Ratan Chaudhary, Birendra 					  	Singh Khokher
 
Counsel for Respondent :- 	AGA
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Chandra Kumar Rai,J.

(Delivered by Hon'ble Chandra Kumar Rai, J.)

1. The instant criminal appeals have been filed against the judgment and order of conviction and sentence dated 31.8.2006 passed by the Sessions Judge, Meerut in S.T. No.730/2002 (State vs. Pawan and Others), under Sections 302 & 201 IPC and in S.T. No.961/2002 (State vs. Pappu @ Jitendra @ Bijendra), under Section 25 of the Arms Act, both P.S. Partapur, Meerut, convicting accused (Pawan, Kendra, Pappu @ Jitendra @ Bijendra) for offence under Section 302/201 IPC and sentencing each of them with imprisonment of life and fine of Rs.5000/- under Section 302 IPC and rigorous imprisonment for a period of one year under Section 201 IPC. Apart from it, accused Pappu @ Jitendra @ Bijendra was also convicted and sentenced with rigorous imprisonment for a period of one year under Section 25 of the Arms Act.

2. Being aggrieved therefrom, accused Sokendra and Pappu @ Jitendra @ Bijendra preferred Criminal Appeal No.6075 of 2006 and accused Pawan preferred Criminal Appeal No.5482 of 2006 for setting aside their conviction and passing an order of acquittal.

3. Since common issues are involved in both the appeals, both are being disposed of by a common order. The facts stated in Criminal Appeal No.6075/2006 shall be treated as a leading appeal.

4. The brief facts relating to the case are that Rampal Singh (father of deceased) lodged an FIR at P.S. Partapur, District Meerut on 21.3.2002 at 12.45 PM with the averment that at 1 PM (noon) on 19.3.2002, Pawan, son of Nauraj and Sokendra son of Suraj, came to his house and called his son Rajendra Kumar @ Raju and taken him (deceased Rajendra Kumar @ Raju) for pretext of sale / measure of sugarcane. On the same day at about 7.30 PM, hotel owner of his village, namely, Krishnapal and his younger brother Sardar Singh were present at Mohiuddinpur Hotel belonging to Krishanpal, at the same time, my son, Pawan, Sokendra & 2 other persons came to the hotel which were in drunken stage and they took tea at the hotel. Krishnapal told that Rejendra @ Raju should stay in hotel during night but Pawan and Sokendra said that they had come with them and they will go to the village with them, after some time, all the four persons, went along with Rajendra Kumar @ Raju from hotel. His son did not come to home on 20.3.2002 till morning then he along with villagers started search and when they reached to farm situate back side of Kisan Inter College, Mohiuddinpur in the wheat field, adjoining to road, then he found a slipper of his son, stone and blood was also seen, wheat crop was damaged. They searched the area then about 200 mtrs. from blood, they found dead body in naked stage, wound was found towards right side of ear and blood was also found there. About 15-20 years before, there was criminal case between his family at one side and family of Nauraj and Suraj on other side to cover the panchayat well in which incident his younger brother received serious injuries, due to old enmity Sokendra along with 2 others murdered his son Rajendra @ Raju, burnt his dead body in order to disappear the offence, the dead body of his son Rajendra @ Raju is lying on the spot.

5. Upon lodging the FIR, investigation started and after preparing memo of recovery of ash and simple earth, kerosine oil in ash, blood-stained square stone, plastic jerry having ½ ltr. of petrol, body of deceased was sent for postmortem. During investigation, the weapon of crime, country-made pistol and two live cartridges were recovered from the possession of Pappu @ Jitendra @ Bijendra on 4.4.2002 of which memo was prepared, FIR was lodged against Pappu @ Jitendra @ Bijendra under Section 25 of the Arms Act. After obtaining the postmortem report and report of Forensic Science Laboratory, completed investigation, respective investigating officer submitted charge-sheet against accused Pawan, Sokendra & Pappu @ Jitendra @ Bijendra under Sections 302/201 IPC and against accused Pappu @ Jitendra @ Bijendra under Section 25 of the Arms Act. Charges were framed against Pawan, Sokendra, Pappu @ Jitendra @ Bijendra under Sections 302/201 IPC and against Pappu @ Jitendra @ Bijendra under Section 25 Arms Act to which they denied and claimed trial.

6. In joint trial of two cases, prosecution produced as many as 11 witnesses viz. Rampal Singh, the 1st informant and father of deceased as P.W.-1; Om Prakash and Mam Chand, the eye-witnesses as P.W.'s- 2 & 3; Jai Prakash, formal witness and witness of inquest and recovery as P.W.-4; Om Pal, formal witness and witness of recovery of container of petrol as P.W.-5; Dr. Gyanendra Kumar, Radiologist, formal witness who conducted postmortem as P.W.-6. Constable Dev Singh Head Moharrir formal witness as P.W.-7 S.I. Rahul Kumar Sharma and S.I. Amresh Chandra Tyagi Ist and IInd Investigating Officer formal witnesses as P.W.8 & 9, Rajiv Kuumar Yadav Investigating officer of Section-25 of Arms Act formal witness as P.W.10, S.i. Suresh chandra Gupta, formal witness of recovery of country made pistol as P.W.11.

7. After completion of prosecution evidence, statements of accused Sokendra was recorded under Section-313 Cr.P.C.. who denied incident & stated that they have been falsely implicated due to enmity. In defence Nahar Singh was produced as D.W.-1.

8. P.W.-1, Rampal 1st informant in his statement-in-chief alleged that Rajendra Kumar @ Raju was his son, on 19.03.2002 at 1.00 p.m. accused Sokendra and Pawan came to his house and bring his son Raju for pretext of sale/ measure of sugarcane. Raju did not come back till evening then he started search from the house of Sokendra, Pawan but till the morning of 21.03.20002 Raju did not return. On 21.03.2002 he started search since morning and reached in the field in the backside of Kisan Inter College and found chappal, stone stained with blood and 200 meter from these item naked dead body was found, which was burnt. He further stated that 15-20 years before Rishipal covered the panchayati well so there was quarrel in which his younger brother Rajpal received injuries as well as father of accused Pawan and Sokendra were also involved in the incident. However, in cross examination, he stated that compromise has taken place in respect of aforementioned incident of 15-20 years before. In cross-examination, he stated that Hotel owner Krishnapal told him on 21.03.2002 after dead body of deceased Raju was found that on 19.03.2002 at 7.30 p.m. Krishnapal and his younger brother Sadar Singh were sitting at Hotel and deceased Raju, Pawan, Sokendra came to hotel and took tea, at that time Pawan, Sokendra along with their two friends and deceased Raju were drunk, Krishnapal told him that Raju (deceased) to sleep at Hotel but Pawan and Sokendra told that they will carry him to his home.

9. P.W.-2, Om Prakash alleged eye witness in his statement-in-chief stated that deceased Rajendra @ Raju is resident of his village, accused Pawan and Sokendra are also resident of his village and Pappu @ Jitendra @ Brijendra is resident of village-Ukhralsi, P.S.-Murad Nagar, District-Ghaziabad and brother-in-law of one Shripal resident of Village-Gejha, Police Station-Partapur, District-Meerut . On 19.03.2002 at 7.30 P.M. he, Mamchand and Nahar Singh were taking tea sitting at the Hotel situated Mohiuddinpur belonging to Krishnapal who also belongs to his village, Sadar Singh of his village was also taking tea at the hotel, at the same time, three accused Pawan, Sokendra, Pappu @ Jitendra and deceased Rajendra @ Raju came to the Hotel, Rajendra @ Raju was over drunken, all the three accused took tea at the Hotel but Rajendra @ Raju did not take tea, when all the four persons Pawn, Sokendra, Pappu @ Jitendra @ Bijendra and Rajendra @ Raju were ready to go then Krishnapal said to Rajendra @ Raju to sleep at the Hotel as he has drunk, all the three accused told they have brought him so they will drop him at his house. So at 8.30 P.M. in night all the four went towards village-Gejha from Hotel on foot, immediately thereafter they walk there. Mamchand and Nahar were also with them and walking in the same direction, after some distance they saw that Pawan, Sokendra, Papu @ Jitendra @ Bijendra were dragging Rajendra @ Raju towards wheat field from road and Pappu @ Jitendra @ Bijendra was saying that you had insulted my sister by abusing her so he will take revenge today and will kill you, Pappu @ Jitendra fired at Raju, they frighten and walk speedily towards his village. They did not tell about incident to anybody in the village because they were frightened that accused can kill him also. In cross-examination P.W.-2 admit that there was no litigation between the father of deceased Raju and father of Pawan and Sokendra. He went to his village immediately after the incident. The distance between his house and house of deceased is 200 Meter. He went to the house of deceased after 4-5 days.

10. P.W.-3, Mamchand another alleged eye witness in statement-in-chief stated that accused Pawn, Sokendra, Pappu @ Jitendra @ Bijendra belong to his village, deceased Raju @ Rajendra belnged to his village, in all other respect he had deposed same thing as stated by P.W.2 in his statement-in-chief. In cross-examination P.W.-3 admitted Papppu @ Jitendra @ Bijendra had fired by country-made pistol on the head of deceased Raju, after incident they went to his village directly, his house is at the distance of 400 meter from the house of deceased, he had not told about the incident to anybody on that day.

11. P.W.-4 Jai Prakash witness of inquest and recovery of ash stated in his statement-in-chief that on 19.03.2002, resident of his village Raju was murdered and his body was recovered on 21.03.2002 in the filed back side of Kisan Inter College, Mohiuddinpur and he was one of the panch of the Panchayatnama. Police has prepared memo of ash and plane earth.

12. P.W.-5, Ompal witness of recovery of container of petrol from accused Sokendra has stated in his statement-in-chief that on 19.03.2002 Raju resident of his village had been murdered and Police was searching for Sokendra, resident of same village. On 01.02.2002 at about 12.15 P.M. Sokendra was standing in front of the gate of Rajkamal factory, he informed the police accordingly police arrested him who confessed the guilt of murder of Raju, the plastic cane having petrol was also recovered from the field at the instance of Sokednra, accordingly memo was prepared which was Ex Ka-7.

13. P.W.-6, Dr. Gyanendra Kumar, Senior Radiologist, District-Hospital Meerut conducted the postmortem of the dead body of Rejendra Kumar @ Raju on 22.03.2002 at 3.45 P.M. He has proved the post mortem report as Ext-Ka-8 and has stated that following injuries were found on the body of the deceased:-

1. Gun shot wound of entry 1x1.5 cm x bone cavity deep right temporal region with fracture right temporal pair parital and frontal bone.

2.Gun shot wound of exit 1x1.5 x 1.4 cm x bone cavity deep left side head just behind left ear communicating to injury no. 1, fracture left parietal bone.

3. incised wound 3x1.5 cm x bone deep right side front upper part of chest II rib cut.

4. incised wound 3x1.5 cm x muscle deep front of chest 1 cm below stemal notch.

Postmortem burn injury are all over the body except front of right and left thing right leg and part of left leg.

In the internal examination, membrane and brain was punctured, right lung was punctured, the cause of death was due to shock and hemorrhage.

14. P.W.-7, Constable Dev Singh (Head Moharrir) who has proved the chik FIR (Ext. Ka-20), GD Report (Ext. Ka-21).

15. P.W.-8, Rahul Kumar Sharma, 1st Investigating Officer has stated that he was posted on the post of Sub-Inspector at P.S. Partapur, this case was lodged in his presence on 21.3.2002 at 12.45 PM. He prepared the site plan after inspection which is Ext. Ka-23.

16. P.W.-9, Amresh Chand Tyagi, 2nd Investigating Officer has stated that he took over the investigation on 24.3.2002. On 1.4.2002, he arrested Sokendra on the information of Ompal Singh and Nawab Singh and recovered jerrycane, having ½ ltr. Petrol, memo was accordingly prepared, the same is Ext. Ka-7, the site plan was also prepared and the same is Ext. Ka-11. On 4.4.2002, accused Pappu @ Jitendra @ Bijendra was arrested on information received who confessed his guilt and at his instance country-made pistol and two cartridges were recovered, the memo was prepared and marked as Ext. Ka-9. In his cross-examination, P.W.-9 admitted that there was no public witness of alleged recovery of country-made pistol and cartridges as well as the arrest of Pappu @ Jitendra @ Bijendra.

17. P.W.-10, Rajiv Kumar Yadav, Investigating Officer of Section 25 of the Arms Act, he recorded statement and prepared site plan Ext. Ka-18, on 18.5.2002 approved case under Section 25 of the Arms Act against accused Pappu.

18. P.W.-11, S.I. Suresh Chandra Gupta was witness of recovery of country-made pistol from accused Pappu @ Jitendra @ Bijendra.

19. D.W.-1, Nahar Singh in his statement has stated in his statement-in-chief that on 19.3.2002 at 7.30 P.M., he was with Mam Chand and Om Prakash and he has not seen any incident at that time, he is a labour, he is resident of the village of the accused person.

20. Heard Sri Desh Ratan Chaudhary and Sri Birendra Singh Khokher, learned counsel for the appellants and learned A.G.A. for the State and perused the record.

21. Learned Counsel for the appellants contended that appellants have been falsely implicated for murder of Rajendra Kumar @ Raju and further submitted that prosecution case is very weak and is wholly unreliable. Counsel for the appellants submitted that F.I.R. is delayed & there is discrepancy regarding date of recovery of dead body. According to F.I.R. version dead body of deceased was found in the field on 20.03.2002 however F.I.R. was lodged on 21.03.2002 at about 12.45 P.M. in the noon & there is no explanation for this delay. In his deposition P.W.-1 (first information) had improved his case by stating that the deceased was searched on 20.03.2002 & dead body was found on 21.03.2002 then F.I.R. was lodged, this discrepancy regarding recovery of dead body has not been explained by the prosecution. Learned counsels for the appellants further submitted that there is discrepancy regarding number of accused in the F.I.R. the first informant had stated that deceased Rajendra Kumar @ Raju was taken away from his house by Pawan, Sokendra and he was last seen by Krishnapal and Sardar Singh in the Hotel along with Pawan, Sokendra and two other persons, while in his examination-in-chief he had stated only two persons namely Pawan and Sokenda came to his house and taken the deceased with them. In his cross-examination he had stated that he was informed by Krishnapal that Rajendra Kumar @ Raju (deceased) came to hotel alongwith accused Pawan, Sokendra and with their two friends however, P.W.-2 and P.W.-3 alleged eye-witnesses had stated that deceased was at Hotel along with three accused Pawan, Sokendra and Pappu @ Jitendra @ @ Bijendra. P.W.-2 and P.W.-3 had not stated about any other fourth person.

22. The next submission made by Counsels for appellants is that most important and relevant witnesses Krishnapal and Sardar Singh, who are cousin and real brother of first informant and are witnesses of last seen have not been examined by prosecution and no explanation has been given for non-examination of Krishnapal and Sardar Singh.

23. The counsels for appellants further submitted that alleged eye witnesses P.W.-1 and P.W.-3 are unreliable as their names are not mentioned in F.I.R. Krishnapal and Sardar Singh, who were present at Hotel had not stated about the presence of P.W.-2 and P.W.3 in the Hotel. The alleged eye-witnesses PW.-2 and P.W.-3 are resident of same village and their houses are at distance of 200 yards & 400 yards from the house of first informant but they had not disclosed to anyone in the village that they had seen the incident rather they had disclosed about the incident after 4-5 days, the alleged eye witness account is in conflict with medical evidence and there is no explanation of two incised/punctured wounds and postmortem burn injuries of the deceased, the alleged eye witnesses P.W.-2 and P.W.-3 are having grudge with the accused persons on account of election gram Pradhan and they had admitted this fact in their cross-examination counsel for the appellants further submitted that prosecution has failed to prove motive of the incident and further submission was made that Nahar Singh/D.W.-1, who was named as witness in the statement of P.W's- 2 & 3, had stated that he was not there along with mam Chand and Om Prakash, counsel for the appellants further submitted that from the pointing out of Sokendra, a container for keeping petrol was recovered while from the ash which was sent for forensic examination, Kerosene oil was found and not the petrol which proves that prosecution had tried to concoct evidence of alleged statement and with respect to the recovery of country made pistol and live cartridges from the possession of Pappu @ Jitendra @ Bijendra there is no public witness of the alleged recovery and arrest. Counsel for the appellants further submitted that statement of P.W.-6, Dr. Gyanendra Kumar is unreliable as he had mentioned two incised wound on the person of deceased and wound appears to be cavity deep as the second rib below this injury and right lung were found cut in his statement he said that these injuries can be caused by stone having one sharp edge this shows that the medical evidence is in conflict with prosecution evidence.

24. Learned AGA for the State on the other hand supported the impugned judgments and order of conviction by contending that no inordinate delay has been caused in lodging the FIR, recovery memo and recovery of country-made pistol from accused Pappu @ Jitendra @ Bijendra fully make out the case against accused / appellants. Prosecution case is fully proved from statement of P.W.'s- 2 & 3, the appeal has been filed with false and baseless allegations and is liable to be dismissed.

25. Upon hearing learned counsel for the parties and perusal of record, we find that 1st informant do not claim himself to be eye witness of occurrence, FIR states that deceased Rajendra Kumar @ Raju along with Pawan, Sokendra along with 2 others was last seen by Hotel owner Krishnapal and Sardar Singh (younger brother of 1st informant) at the hotel in drunken stage but Krishna Pal and Sardar Singh had not been examined, P.W.'s-2 & 3, Om Prakash and Mam Chand have not been mentioned in the FIR, there is no whisper in FIR about providing of any information to 1st informant by P.W.'s- 2 & 3. According to FIR version, the dead body of deceased was found after search on 20.3.2002 but in his deposition, the 1st informant improved his case by stating that the deceased was searched on 20.3.2002 and dead body of deceased was found on 21.3.2002, this discrepancy has not been explained by prosecution. According to prosecution, deceased was taken away from the house by accused Pawan and Sokendra and in the last seen at Hotel by witnesses, Krishnapal and Sardar Singh, the deceased was seen along with Pawan, Sokendra and two unknown person.

In the cross-examination, P.W.-1 again stated that he was informed by Krishnapal that deceased Rajendra Kumar @ Raju came to his hotel along with Pawan, Sokendra and their two friends while P.W.'s- 2 & 3 had stated that deceased was at hotel along with accused Pawan, Sokendra and Pappu @ Jitendra @ Bijendra but they have not stated about 4th one. It shows that allegations about date of recovery of dead body and number of accused are totally imaginary part of prosecution story in FIR which may not be relied upon in absence of any evidence.

26. Prosecution witnesses Om Prakash - P.W.-2 and Mam Chand- P.W.-3, the alleged eye witnesses of the incident have not been mentioned in the FIR, the witnesses mentioned in the FIR Krishna Pal (cousin of 1st informant) and Sardar Singh (younger brother of 1st informant) have not mentioned about the presence of P.W.'-2 & 3 in the hotel to the 1st informant. It is further material that P.W.'s- 2 & 3 are resident of same village - Gejha and their houses are situated at the distance of 200 - 400 yards from the house of deceased even then P.W.'s- 2 & 3, the alleged eye-witnesses had not told about the incident to any of the villagers including 1st informant rather had told about the incident after 4-5 days. It is further material to state that the statements of P.W.'s- 2 & 3 are in conflict to medical report / evidence as two incised / punctured wounds and burn injuries were found on the body of deceased but in chief as well as in cross-examination of P.W's- 2 & 3, they had stated about fire only. It is further material to state that P.W.-2 in his cross-examination admitted that in the panchayat election, his brother contested for Pradhan against Bijendra, in the same manner, P.W.-3, in the cross-examination stated about accused Pawan, these facts prove that P.W.'s- 2 & 3 had enmity against accused person. From the aforementioned fact, it is fully established that testimony of P.W.'s- 2 & 3, alleged eye-witnesses cannot be relied upon.

27. Another argument of learned counsel for the appellants is that most important and relevant witness of the incident, namely, Krishnapal who is cousin of 1st informant and Sardar Singh, younger brother of 1st informant, witnesses of the last seen and not been examined by prosecution, is very much relevant. It is material to state that non-examination of Krishnapal and Sardar Singh by prosecution is very crucial as they were witnesses of the last seen as such it creates doubt upon prosecution story.

28. In view of the facts and circumstances stated above, we are of the considered view that the prosecution case is based on testimony of alleged eye-witnesses P.W.'s-2 & 3 which is not found reliable in absence of the testimony of witnesses of last seen, Krishna Pal & Sardar Singh whose names were mentioned in FIR but the names of P.W.'s- 2 & 3 were not mentioned in FIR nor their names were told by Krishnapal and Sardar Singh to P.W.-1 as such the prosecution case is doubtful.

29. It is also pertinent to state that with respect to motive of the incident in the FIR, it is alleged that about 15-20 years before, there was quarrel between the family of 1st informant and family of Nauraj & Shauraj (father of accused) in which younger brother of 1st informant received serious injury, due to that enmity the son of 1st informant, has been murdered, however, in the cross-examination, P.W.-1 admitted that dispute of 20 year before was compromised, this admission part is on page-29 of the paper book. P.W.-2 / Om Prakash in his cross-examination had denied about enmity / criminal litigation between the family of the deceased and family of accused Pawan and Sokendra, the relevant part of cross-examination of P.W.-2 is on page no. 33 of the paper book. P.W.'s-2 & 3 in their examination-in-chief had stated that accused Pappu @ Jitendra @ Bijendra was saying just before the incident that you have insulted my sister and abused her also so I will take revenge today. Relevant portion is on page nos. 33 & 35 of the paper book, P.W.-2 & P.W.-3 had introduced another motive rather than set up by P.W.-1in the FIR. Accordingly, motive of the incident had also not been proved by the prosecution.

30. With respect to recovery, it is relevant to mention here that Ext. Ka-7, recovery of plastic jerry can (page nos. 14 to 16 of the paper book) says ½ ltr. of petrol in the jerry can at the pointing out of accused Sokendra while the ash sent for forensic examination says for kerosine oil (page no. 26 of the paper book), this further proves that prosecution concocted the evidence of statement and recovery. The recovery memo of country-made pistol and live cartridges, Ext. Ka-9 (page no. 17 of the paper book) from the accused Pappu @ Jitendra @ Bijendra and his arrest, reveal that there is no public witness of the recovery and arrest, accordingly, recovery of fire-arm from accused pappu @ Jitendra @ Bijendra after about 14 days of incident from an open space in absence of any public witness of recovery, is highly doubtful and may not be relied upon. Learned counsel for the appellants placed reliance upon paragraph no. 19 of the judgement of the Hon'ble Apex Court, delivered on 8.11.2021 in Criminal Appeal No.2438 of 2010, Bijender @ Mandar vs. State of Haryana.

19. Unmindful of these age old parameters, we find that the Prosecution in the present case has miserably failed to bring home the guilt of the Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as the rise in the incidents of dacoity. In its desire to hold a heavy hand over such derelictions, the Trial Court and the High Court have hastened to shift the burden on the Appellant to elucidate how he bechanced to be in possession of the incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct. We say so for the following reasons:

Firstly, the High Court and the Trial Court failed to take into consideration that the testimony of ASI Rajinder Kumar (PW14) exhibited no substantial effort made by the police for conducting the search of the residence of the Appellant in the presence of local witnesses. The only independent witness to the recovery was Raldu (PW8) who was admittedly a companion of the Complainant.

Secondly, the Complainant (PW4) as well as Raldu (PW8), have unambiguously refuted that neither the passbook, nor the 'red cloth' was recovered from the possession of the Appellant, as claimed in his disclosure statement.

Thirdly, while the Complainant (PW4) negated his signatures on the recovery memo (EX. PD/2), on the other hand, Raldu (PW8) also neither enumerated the recovery memo (Ex. PD/2) in the catalogue of exhibited documents, nor did that he affirm to having his endorsement.

Fourthly, the recovered articles are common place objects such as money which can be easily transferred from one hand to another and the 'red cloth' with 'Kamla' embossed on it, as has been acceded by the Investigating Officer, Rajinder Kumar (PW14), can also be easily available in market.

Fifthly, the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the Appellant during the entire time period kept both the red cloth and the passbook in his custody, along with the money he allegedly robbed off the Complainant.

Sixthly and finally, there is no other evidence on record which even remotely points towards the iniquity of the Appellant.

31. The argument raised on behalf of the appellants with respect to statement of P.W.-6 / Dr. Gyanendra Kumar, Senior Radiologist that the same is not reliable, appears to be correct as P.W.-6 had mentioned injury nos. 3 & 4 in his postmortem report as follows:-

No.3- Incised wound 3x1.5 cm x bone deep right side front upper part of chest II rib cut.

No.4- Incised wound 3x1.5 cm x muscle deep front of chest, 1 cm below sternal notch.

In the internal examination, right lung was also found cut but P.W.-6 has stated that injury nos. 3 & 4 can be caused by one sharp edged stone.

It is material to state that evidence of P.W.-6 is in conflict of prosecution evidence as such the same cannot be relied upon.

31. In view of the discussions made above, we have come to the conclusion that prosecution has failed to prove charges levelled against accused persons under Sections 302/34, 201 IPC and Section 25 of the Arms Act by any reliable, cogent and independent evidence to the hilt beyond reasonable doubt. For the reasons mentioned in preceding para, considering the possibility of murder of deceased by unidentified culprits and false implication of appellants in belated FIR due to enmity and suspicion, it will not be safe to base conviction of appellant on uncorroborated testimony of P.W.'- 2 & 3 and accused appellants are entitled to the benefit of doubt. The learned trial court has acted wrongly and illegally in not considering above mentioned material aspect and believing unreliable and uncorroborated testimony of P.W's-2 , 3 & 6 in holding the appellants guilty. The impugned judgment and order of conviction of appellants and sentence is liable to be set aside and appeal is liable to be allowed.

32. The appeals are allowed and impugned judgment and orders of conviction and sentence are set aside. The accused appellants Sokendra and Pappu @ Jitendra @ Bijendra in Criminal Appeal No.6075/2006 and accused - appellant Pawan in Criminal Appeal No.5482/2006 are acquitted of the charges under Section 302 and 201 IPC and accused-appellant no. 2 Pappu @ Jitendra @ Bijendra in Criminal Appeal No.6075/2006 is also acquitted of the charges under Section 25 of the Arms Act.

33. The accused-appellant no. 1 Sokendra in Criminal Appeal No. 6075 of 2006 and accused - appellant Pawan in Criminal Appeal No.5482 of 2006 are in jail. They shall be released from jail forthwith. Accused -appellant no. 2 Pappu @ Jitendra @ Bijendra is on bail and need not to surrender. His bail bond is cancelled.

34. Let copy of this order along with the record be sent to the court below for compliance.

Order Date :- 10.12.2021

C.Prakash

(Chandra Kumar Rai, J.) (Anjani Kumar Mishra,J.)