Rajendra Yadav vs State Of U.P.
2023 Latest Caselaw 3295 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 47
 

 
Case :- CRIMINAL APPEAL No. - 1240 of 2021
 

 
Appellant :- Rajendra Yadav
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kailash Pati Singh Yadav,Rajiv Lochan Shukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

(Per: Hon. Shiv Shanker Prasad, J.)

1. This criminal appeal is directed against the impugned judgment and order dated 10.02.2021, passed by Additional Sessions Judge/ Fast Track Court-II, Chandauli in Session Trial No. 04 of 2013 (State of U.P. Vs. Rajender Yadav), arising out of Case Crime No. 232 of 2012, whereby accused-appellant- Rajendra Yadav has been convicted and sentenced for life imprisonment for an offence under Section 302 I.P.C. alongwith fine of Rs.15,000/-, in default thereof, to further undergo six months additional imprisonment.

2. We have heard Mr. Rajiv Lochan Shukla, learned Counsel assisted by Ms. Suman Bharti, Advocate appearing for the accused-appellant and Mrs. Archana Singh, learned A.G.A. for the State as also perused the entire materials available on record.

3. As per the prosecution case a written report (Ext. Ka-1) was given on 17.6.2012 to the Police Station Mugalsarai, District Chandauli, by Muse Yadav (P.W.-1/first informant), who happens to be the son of the deceased stating that his father used to sell milk. As usual, on 17.6.2012 in the evening, he had gone to sell milk and when he was returning after supplying milk to Saran Yadav, resident of village Katesara, the accused Rajender Yadav son of Jaganandan Yadav resident of his village, with whom a dispute was going on in respect of passage and open land between them, lay in ambush near Katesar Bhusa Mandi at around 7:45 P.M., and assaulted the deceased by brick repeatedly until he died and that his father's body is lying on the spot. On the basis of the above written report a first information report dated 17.6.2012 (Ex.Ka.6) came to be lodged and registered as Case Crime No. 232 of 2012, under Section 302 I.P.C. against the accused-appellant.

4. After registration of the first information report, P.W.-8, namely Sanjay Singh, Investigating Officer reached the place of occurrence on the same day i.e. 17.6.2012 at about 7:30 - 8:00 P.M. The inquest proceedings however commenced at 06:00 A.M. on the next day and concluded at about 7:30 A.M. The Investigating Officer of this case P.W.-8 recovered Cycle and milk bucket (Balta) (Ex. Ka-3), blood stained piece of brick (Ex.Ka-4), blood stained and plain earth (Ex. Ka-5) and prepared recovery memos in that regard.

5. The post-mortem has been conducted on 18.06.2012 in which cause of death has been found to be Coma as a result of following ante mortem head injuries:-

"1. Lacerated injury .8 cm x 2 cm over Rt. Side of frontal bone and part of left side parietal bone

2. Contused swelling 10 cm x 6 cm just above the lacerated wound

3. Contused injury over scalp except occipital region

4. Contused swelling over face 4 cm x 8 cm including nasal area and part of both cheek . Both side of maxilla fractured."

6. The Investigation ultimately concluded with submission of charge-sheet against the accused-appellant on 30.07.2012 (Exhibit-Ka-8). The concerned Magistrate took cognizance and committed the case to the Court of Sessions, wherein charges have been framed under Section 302 I.P.C. against the accused-appellant on 28.06.2014. Charges were read out to the accused-appellant, who denied the accusation and demanded trial.

7. The prosecution in order to establish the charge levelled against the accused-appellant, has relied upon following documentary evidences, which were duly proved and consequently marked as Exhibits:

"Written report dated 17.6.2012 has been marked as Exhibit-Ka-1; F.I.R dated 17.6.2012 has been marked as Exhibit-Ka-6; Recovery memo of Cycle & Bucket dated 18.6.2012 has been marked as Exhibit-Ka-3; recovery memo of piece of bricks dated 18.6.2012 has been marked as Exhibit-Ka-4; Recovery Memo of blood stained and plain earth dated 18.06.2012 has been marked as Exhibit-Ka-5; Post mortem report dated 18.06.2012 has been marked as Exhibit-Ka-15; Panchayatnama dated 18.06.2012 has been marked as Ex. Ka.-10; Site Plan with Index dated 18.06.2012 has been marked as Ex. Ka-9; and Charge Sheet dated 30.07.2012 has been marked as Ex. Ka.-8."

8. The prosecution has also adduced oral testimony of following witnesses:-

"P.W.-1/ informant, namely, Muse Yadav, son of the deceased; P.W.-2, namely Boder Yadav, son of the deceased; P.W.-3, namely Nakhadu Yadav; P.W.-4, namely, Shankar Yadav, P.W.-5, namely, Pintoo Yadav, witness of Panchayatnama, P.W.-6, Sub Inspector Ram Kumar Singh,, who has lodged the F.I.R., P.W.-7 Second Investigation Officer, Ram Prakat Yadav, P.W.-8 First Investigating Officer Sanjay Singh, P.W.-9 S.I. Praveen Kumar Singh, P.W.-10, namely Dr. Ashok Kumar, who conducted the post-mortem of the deceased.

9. On the basis of material produced by the prosecution during trial, incriminating materials were put to the accused-appellant for recording his statement under Section 313 Cr.P.C. The accused-appellant has stated that he has been falsely implicated in the present case due to enmity and the statements of prosecution witnesses are incorrect. He further stated that the deceased died due to injuries sustained in a road accident for which the wife of the deceased namely, Jokhni Devi received a Cheque of Rs. 5 lakhs on 3.9.2013 under a State scheme, namely, U.P. Krishak Durghtana Bima Yojana.

10. Defence has also produced three witnesses namely, D.W.-1 Lalta Prasad, Tehsildar Mughalsarai, Chandauli, D.W-2, namely, Phulchandra Yadav, Tehsildar Sadar, Chandauli and D.W.-3, namely, Khushhal Prasad, retired Lekhpal.

11. Upon perusal and consideration of the material placed on record by the parties, the trial court held that P.W.-3 and P.W.4 are the eye-witnesses of the incident and on the basis of their statements (in examination-in-chief as well as in cross-examination) it has come to the conclusion that the deceased Kailash was murdered by the accused by assaulting him with brick and the eye witnesses have seen the incident with their own eyes in the headlight of a Jeep passing through the area. The court below has also concluded that the death of the deceased Kailash Yadav was not in a road accident, but he was done to death by the accused appellant. P.W.-10, namely Dr. Ashok Kumar has denied that the deceased died due to injuries sustained in a road accident and has stated that injury No.3 cannot come from being crushed under the wheel and the same could be the cause of death of the deceased and due to this injury the bones of skull of the deceased were fractured. The trial court also opined that benefit of Krishak Durghatana Bima Yojana is not limited to the dependents who died in road accident, but can also be given in the case of murder. After recording the aforesaid finding the trial court held that the murder of the deceased has been committed by the accused-appellant. Therefore, the prosecution has been able to prove the guilt of the accused-appellant beyond reasonable doubt and has accordingly convicted and sentenced him to undergo life imprisonment along with fine. It is against this judgment of conviction that the present appeal has been preferred.

12. Learned counsel for the accused-appellant submits that the accused-appellant has been falsely implicated in the present case due to enmity. He further submits that a dispute in respect of passage and open land was going on between the parties and the informant has intentionally implicated the accused appellant. It is also submitted that the deceased met with an accident on the road and the prosecution has given it a colour of murder. Deceased's wife namely Jokhni Devi has received a cheque of Rs.5 lakhs under the scheme of Krishak Durghatana Bima Yojana. The incident occurred at about 7:45 P.M. on the road and there was no source of light and all the witnesses, who have alleged that they have seen the incident are not the eye witness because they reached the place of occurrence after the death of the deceased. He next submits that the autopsy report does not support the prosecution case and no brick part has been recovered from the place of occurrence.

13. Learned A.G.A. on the other hand submits that this is a case in which enmity is admitted and the statement of eye-witnesses namely, P.W.-3 and P.W.-4 are absolutely credible and reliable and there is direct evidence against the accused-appellant to support the prosecution case. The place of occurrence has not been disputed by the prosecution. On the cumulative strength of the evidence led by the prosecution, learned A.G.A. submits that this is a case of direct evidence and the impugned judgment and order does not suffer from any infirmity and illegality and the present appeal is liable to be dismissed by this Court.

14. We have examined the respective contentions urged by the learned counsel for the parties and have perused the records of the present appeal including the lower court records.

15. The only question required to be addressed and determined in this appeal is whether the conclusion of guilt arrived at by the learned trial court and the sentence awarded to the accused-appellant is legal and sustainable in law and suffers from no infirmity and perversity.

16. Before entering into the merits of the case set up by the learned counsel for the accused-appellant and the learned A.G.A. qua impugned judgment and order of conviction passed by the trial court, it is desirable for us to briefly refer to the statements of the prosecution witnesses.

17. The prosecution in order to prove its case has relied upon the statement of P.W.-1, namely, Muse Yadav (first informant) son of the deceased. He has stated that the incident occurred on 17.6.2012. At the time of the incident, his father Kailash Yadav used to sell milk. He used to collect milk every day and take it to Saran Yadav's place by bicycle. On the fateful day, the deceased Kailash Yadav had gone to sell milk as usual in the evening and while he was returning home, Rajendra Yadav son of Jaganandan Yadav of his village, who was waiting in ambush at a deserted place around 7:45 P.M., threw his father off the bicycle and killed him by assaulting him with a brick. A dispute in respect of passage and open land was going on between the accused and his family from before the incident, due to which accused-appellant harboured enmity with the deceased. On the fateful day, Nakhdu Yadav (P.W.-3) and Shankar Yadav (P.W.-4) of his village were also returning after supplying milk. Nakhdu Yadav came to his house and told him at around 8 o'clock in the night that Rajendra Yadav had killed his father by assaulting him with a brick near the village Katesar Bhusa Mandi Bawan Bigha Field. On this information, informant P.W.-1 along with his brother reached the place of occurrence and saw that his father's dead body was lying at a deserted place on a rough road, about 500 meters away from Bhusa Mandi. After that he went to Police Station Kotwali Mughalsarai, accompanied by his brother Bodar Yadav (P.W.-2) and gave the written report at the police station on which the F.I.R. was registered.

18. In the cross-examination, this witness has stated that he got the information about the murder of his father from Nakhdu Yadav, and when he reached the place of occurrence it was about 8:15 P.M., he shook his father but got no response, because of which he apprehend that his father had died. His father's head and face were completely crushed and blood was oozing from one side of his face. Apart from this, there was no other injury. He further stated that he had filed an application against Rajendra Yadav on the information of Nakhdu Yadav. Nakhdu Yadav had informed him that the deceased Kailash Yadav was killed by the accused-appellant Rajendra Yadav by assaulting him with a brick. He has also stated that Nakhdu Yadav had not disclosed that someone else had also seen the incident or he tried to save the deceased. When the inquest was conducted by the Investigating Officer Nakhadu Yadav was not present. He disclosed the Investigating Officer that the brick, bicycle and the milk bucket (Balta) were lying nearby the deceased.

19. P.W.-2 namely, Bodar Yadav son of the deceased has supported the prosecution case and substantially adapted the stand taken by P.W.-1 at the stage of trial. The murder occurred on the sidewalk of Bavan Bigha Bhusa Mandi. He has admitted that he had not seen the incident and he and his brother Muse Yadav were informed by Nakhdu Yadav. When he reached the place of occurrence he saw that blood was oozing out from the face of the deceased and there was no bleeding from other parts of the body. It was about 8 o'clock in the night and there was no light. His house is 500 meters away from the place of occurrence. None of the villagers informed that Rajendra had killed Kailash. Nakhdu Yadav is his cousin. There was a dispute between Nakhdu Yadav and Rajendra Yadav in which both the sides have implicated each other, before the incident. He has further stated that he is not aware that his mother had received a cheque of Rs. 5 lakh towards motor accident claim under the scheme of Krishak Durghatana Bima Yojana with regard to death of his father, Kailash Yadav in a road accident. He has denied that the case was registered on the wrong information given by Nakhdu Yadav.

20. P.W.-3, Nakhdu Yadav in his examination in chief has stated that the incident occurred on 17.6.2012 at about 7:45 pm. On the date of the incident he and Shankar Yadav were returning after supplying milk. Kailash Yadav (deceased) was ahead of them, who too was returning after supplying milk. When they reached near village Kateshar Bhusa Mandi Bawan Bigha Field, they saw in the headlight of a passing jeep that Rajendra Yadav son of Jaganandan Yadav killed the deceased Kailash Yadav by assaulting him with brick and Kailash Yadav was stuck in the cycle. He has further stated that he and Shanker (P.W.4) have seen the incident. They rushed to the spot and tried to catch Rajendra Yadav but he escaped in the bush. They came home and informed the sons of the deceased about the incident. He has further stated that he had filed a case against the accused Rajendra Yadav in respect of dispute of passage. Deceased Kailash Yadav was his real uncle. The accused-appellant Rajendra Yadav was seen from a distance of 20 paces from the place of occurrence. He tried to save the deceased when the accused-appellant was assaulting the deceased but he could not catch him because of darkness.

21. This witness has further stated that it was dark when Rajendra was assaulting Kailash. He has admitted that after 10 to 15 or 20 days police recorded his statement under section 161 Cr.P.C. He has shown his inability to disclose whether Jokhani Devi, wife of deceased had received 5 lakh rupees as compensation by showing Kailash's death as a death in a road accident.

22. PW-4, namely, Shankar Yadav has stated that on the day of the incident, he alongwith Nakhdu Yadav were returning home after supplying milk. Kailash Yadav was ahead of them. At about 7:45 P.M., when they reached near Kateshar Bhusa Mandi, Bawan Bigha Ground, they saw in the headlight of a jeep coming from front, which was available for one to two seconds that Kailash Yadav was stuck in the bicycle with his milk bucket and the accused Rajendra Yadav was assaulting Kailash with a brick. Accused Rajendra Yadav killed the deceased due to enmity on account of a dispute in respect of passage and open land. He has further stated that he and Nakhdu have seen the incident from a distance of more than 15-20 paces and that it was dark at the time of occurrence. He admitted that the jeep did not stop at the spot and they could not see its registration number. He has admitted that there was litigation pending between Nakhdu Yadav and accused Rajendra Yadav.

23. P.W.-5, namely, Pintu Yadav is the witness of inquest (Exhibit Ka-1). He has also proved the recovery memo of bicycle and milk bucket. He has been cross examined in which he has stated that he had signed on a blank paper. He has admitted that since the recovery memo of blood stained and plain earth has not been shown to him in the court, therefore he could not prove the said recovery. He has further admitted that a litigation was pending between Rajendra Yadav and his father Nakhdu Yadav with regard to a fight (maar-peet). He has admitted that there was animosity between both of them.

24. P.W.- 6, namely S.I. Ramkumar Singh has proved the chik F.I.R (which is marked as Exhibit Ka-6).

25. P.W.-7 is Ramprakat Yadav, who has submitted charge sheet no. 110/12 against the accused-appellant Rajendra Yadav s/o Jaganand Yadav under section 302 I.P.C. He has been cross-examined in which he has stated that since the alleged weapon i.e. piece of brick has not been shown to him in the trial Court, he was unable to prove the same. He has stated that he could not disclose as to on which date and month the piece of brick has been sent for forensic examination to the Forensic Science Laboratory and the forensic report has also not been produced. He has further stated in his cross-examination that since the number of the jeep was not revealed by the witnesses and various Jeep passes every day on that road, he could not locate the jeep in the headlight of which the incident was seen by the prosecution witnesses.

26. P.W.-8 is Sanjay Singh. He has partly conducted investigating in this case. He admitted that the dead body was lying in the field at a distance of 7-8 hundred meters from G.T. Road. He has denied that the body of the deceased was lying on the pitch road. He has further admitted that the weapon of assault i.e. the piece of brick has not been sent to the forensic science laboratory for forensic examination. There was no supply of electricity at the place of occurrence and it was completely dark. He has admitted that he has not marked the place in the site plan from where the witnesses have seen the occurrence. He did not send the weapon of assault i.e. piece of brick, blood stained and plain earth for forensic examination. He has not investigated whether the wife of deceased received any amount towards road accident claim/ insurance.

27. P.W.-9 namely, inspector Praveen Kumar Singh has been examined who has prepared the inquest report. He has stated in his examination-in-chief that proceeding of inquest started on 18/6/12 at 6 a.m. and concluded at 7:30 am. P.W.-10 namely, Dr. Ashok Kumar has conducted post-mortem of the body of the deceased. He has been cross-examined in which he alleged that injury no. 1 may be caused from a sharp edged weapon or due to a fall by force. Injury No. 2 cannot come from falling on a hard object, it can come from assault with a blunt weapon or upon being hit by a vehicle. Injury No. 2 can also come from a forceful impact of a vehicle. He admitted that Injury No. 3 can result from forceful hit of something or forceful hit by a heavy object and could have been the cause of death of the deceased as the bone of his skull was fractured. Injury No. 4 was a grievous injury. It may be caused from a hard object or collision. It cannot come from fall and can also be caused with a blunt weapon. Injury No. 4 may be caused from iron bumper or iron fitted in the vehicle if it is hit forcefully. Injury No. 3 was a crush injury.

28. DW-1 Lalta Prasad, was posted in Azamgarh on 2/3/14 and not at Chandauli. D.W.-2 Phool Chandra Yadav, Tehsildar, Sadar Chandauli, has stated that he was not in service on 13/5/13. The benefit of farmer accident insurance is not only given to the dependants of a deceased farmer who dies in a road accident but also in cases of drowning in rivers, ponds, etc., house collapse, vehicle accident areas, being bitten by animals. etc. He has further stated that in this case, Jokhani Devi, wife of the deceased Kailash Yadav, has been given the benefit of Krishak Durghtana Bima Yojana on 3/9/13 by the then Tehsildar Sadar Chandauli. Presently the village of deceased Kailash Nath is within the territorial limits of Tehsil Mughalsarai.

29. From the perusal of the prosecution witnesses, it is apparently clear that as per the prosecution case, P.W.-3 Nakhadu Yadav, who happens to be real nephew of the deceased and P.W.-4 Shanker Yadav are witnesses of fact/eye witnesses, whereas P.W.-1 Muse Yadav, P.W.-2 Boder Yadav, who happen to be the sons of the deceased and P.W.-5 Pintoo Yadav, who happens to be son of P.W.-3 Nakhadu Yadav, are hear-say witnesses and other prosecution witnesses, namely, P.W.-6 to P.W.-10 are formal witnesses. From the prosecution side, it is claimed that this is a case of direct evidence in which P.W.-3 and P.W.-4 have seen the incident with their own eyes. Therefore, the statements of P.W.-3 and P.W.-4 require deeper scrutiny by us.

30. It is important for us to refer to the statement of P.W.-3. In the examination-in-chief, P.W.-3, who is stated to be 60 year of age, has stated that on the date of the incident he and P.W.-4 were returning together after supplying milk. The deceased was on a bicycle ahead of them, who was also returning after supplying milk. When they reached the village Kateshar Bhusa Mandi Bawan Bigha Field, they saw in the headlight of a jeep, coming from the front that the accused-appellant killed the deceased by assaulting him on his head with a brick and the deceased was stuck in the bicycle. He has further stated that the incident was seen by him and also P.W.-4. They reached the spot and tried to catch the accused-appellant but he succeeded in running away and hiding himself in the bush. He has also admitted that there was dispute qua the passage and open land between the deceased and the accused-appellant. He has also admitted that there was enmity between the accused-appellant and himself qua a passage and he has also filed a case against the accused-appellant for title over the disputed passage, meaning thereby that enmity between the accused-appellant and P.W.-3 is admitted on record due to which the possibility of false implication of the accused-appellant in the present case by P.W.-3 cannot be ruled out.

31. He has stated in his examination-in-chief that when he arrived at the place of incident along with Shanker Yadav (P.W-4), the deceased Kailash Yadav was lying dead on the road. Similarly, in the cross-examination he has stated that when he along with Shanker Yadav (P.W.-4) reached near the village Kateshar Bhusa Mandi Bawan Bigha Field, they saw that the deceased was stuck in his bicycle. From the perusal of both the aforesaid statements of P.W.-3, it is apparent that the deceased had already died by when P.W.-3 and P.W.-4 reached the place of occurrence and they have not seen the incident when it occurred. In his cross-examination at one place P.W.3 has stated that he saw the accused-appellant at the place of incident from 20 paces whereas at another place he has stated that he saw the deceased from a distance of 1.6 kilometer (one mile) on the northern side of road towards Ramnagar to Padaav. Similarly, at other place, P.W.-3 has stated that the deceased was at a distance of 20 to 25 paces ahead from him. When the accused-appellant was beating the deceased, he tried to save him but he could not caught him due to darkness. He has further stated that by the time they reached, the accused-appellant ran away and hide himself in bush. It was dark at the time when he saw the accused killing the deceased and running away. From the aforesaid statement, it is doubtful for any person to have seen the incident, which occurred at a distance of 20 to 25 paces or 1.6 kilometers, when it was dark, and to recognize the assailant who committed the offence.

32. P.W.-4 happens to be uncle of P.W.-3 and is aged 66 years. He too is stated to be an eye-witness of the incident. He has stated in his examination-in-chief that at about quarter to 8 in evening he and P.W.3 were returning home on foot after selling milk and when they reached near village Kateshar Bhusa Mandi Bawan Bigha Field, they saw in the headlight of jeep, which was available for one to two seconds that the deceased got stuck in his bicycle along with bucket of milk and the accused-appellant was assaulting the deceased by brick. In the cross-examination, P.W.-4 has stated that he and P.W.-3 were together and they were 70-80 paces behind the deceased and it was getting dark and nothing was visible. He has further stated that they saw the accused assaulting the deceased from a distance of 15 to 20 paces. He has admitted that there was enmity between the accused-appellant and the deceased with regard to a passage. He has further stated that he saw the deceased in crushed condition and the direction of Jeep was northwards. He has further stated that he saw the accused-appellant running but by then there was no jeep. P.W.-3 was the first to disclose him about the death of deceased. At another place, P.W.-4 has stated that at that time he knew that the death was caused by the accused-appellant. He has further stated that there was litigation going on between P.W.-3 and the accused-appellant and in that case, he went to the Court on behalf of P.W.-3 as he is his nephew.

33. From the statements of P.W.-3 and P.W.-4 it is clear that they saw the accused-appellant running from a distance of 15 to 20 paces and it is highly doubtful that they saw the incident when it actually occurred. Even if it is accepted that they saw the incident when it occurred in the headlight of a jeep it is difficult to believe that P.W.-4 and P.W.-3, who are 66 and 60 years of age could correctly see the incident from a distance of 15 to 20 paces in the dark and identify the accused correctly and that too in the headlight of a moving jeep which was available for a few seconds (one to two seconds) as per P.W.-3 and P.W.-4. Both P.W.-3 and P.W.-4 have admitted in their statements that they could not ascertain the number of jeep. Apart from the above, there is strong possibility of false implication of accused-appellant in the present case by P.W.-3 and P.W.-4, as they have admitted that there was litigation going on between P.W.-3 and the accused-appellant and that P.W.-4 used to go to Court on behalf of P.W.-3. There was admittedly no other source of light available on the spot as is evident from the statement of P.W.-8 i.e. Investigating officer.

34. Upon examination of the statements of prosecution witnesses, who are stated to be eye-witnesses a serious doubt arises with regard to their presence at the place of occurrence or their seeing the incident. There is also contradiction in the statements of prosecution witnesses. As such we do not deem it proper to rely upon the testimony of inimical and interested witnesses of prosecution to return a finding of guilt against the accused.

35. Considering the aforesaid statements as well as the fact that from the statements of prosecution witnesses, we have not found that any one from the prosecution side has seen the incident when it occurred. We also find that possibility of the death of the deceased occurring in a road accident also cannot be ruled out particularly as the defence has proved that wife of deceased had accepted compensation of Rs. 5 Lacs in a State sponsored accidental insurance scheme.

36. Apart from the above, we may also notice that there is no report of concerned Forensic Science Laboratory in respect of forensic examination of weapon of assault i.e. piece of brick, which is alleged to have been used by the accused-appellant in assaulting the deceased due to which he has been done to death. P.W.-8 who has conducted the investigation has stated that he has not sent the weapon of assault i.e. piece of brick for forensic examination, which casts a doubt in the prosecution case.

37. Similarly, recovery memo prepared during the course of investigation qua blood stained and plain earth, which are alleged to have been recovered from the place of occurrence, has not been proved by P.W.-5, who is alleged to be a witness of such recovery. P.W.-5 has stated that at the time of preparation of such recovery, his signature has been obtained by the Police on a blank paper. The aforesaid fact also creates a dent on the prosecution version.

38. Perusal of the site plan (Exhibit-ka/9) also casts doubt in the prosecution case as the place of occurrence as per the site plan and other evidence on record, has been shifted. As per the site plan prepared by P.W.-8 (Investigating Officer), which has also been disclosed by him in his statement during the course of trial, the place of occurrence is 700 to 800 meters away from G.T. Road, whereas as per the statement of prosecution

witnesses of fact i.e. P.W.-3 and P.W.-4 the place of occurrence is near the village Kateshar Bhusha Mandi Bawan Bigha field (Maidan). Both the places are far away from each other, meaning thereby that the place of occurrence as per the prosecution has been shifted, which make a flaw in the prosecution case. The site plan also casts an anomaly on the ground that the place from where the prosecution witnesses of fact i.e. P.W.-3 and P.W.-4 are alleged to have seen the occurrence, when it occurred, has not been marked.

39. We may also notice that on the basis of written report of the first informant/P.W.-1, the first information report has been lodged on 17th June, 2012 at 21:25 hrs. whereas in the cross-examination, P.W.-8 has stated that he reached the place of occurrence between 07:30 to 08:00 p.m. meaning thereby that the investigation is ante-timed, which also creates a dent on the prosecution version.

40. In view of the above discussions and deliberation, we find that the trial court although has referred to the testimony of prosecution witnesses especially P.W.-3 and P.W.-4 and the other prosecution evidence but the same has not been carefully evaluated and examined. We hold that prosecution has not been able to establish the guilt of the accused-appellant beyond reasonable doubt. The accused-appellant in the facts of the present case is thus entitled to benefit of doubt.

41. Consequently, the appeal succeeds and is allowed. The impugned judgment and order of conviction and sentence dated 10.02.2021 is hereby set aside. The accused appellant Rajendra Yadav, who is reported to be in jail since 10th February, 2021, shall be released forthwith, unless he is wanted in any other case on compliance of Section 437-A Cr.P.C.

42. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Chandauli henceforth, who shall transmit the same to the concerned Jail Superintendent for release of the accused-appellant in terms of this judgment.

                           (Shiv Shanker Prasad, J.)    (Ashwani Kumar Mishra, J.)
 
Order Date: 2.2.2023
 
Abhishek Singh