JUDGMENT G.P. Srivastava, J.
1. This is Criminal Appeal against the judgment and sentence dated 15.3.2002 passed by the then Additional Sessions Judge (F.T. Court No. 2), Moradabad in S.T.No. 884 of 2000 (State v. Jamshed and Ors.) convicting and sentencing the appellants Khursheed and Rafiq, under Section 302/34 I.P.C. for life imprisonment, under Section 201 read with Section 34 I.P.C. for life imprisonment and under Section 394 read with Section 34 I.P.C. for seven years each. All the sentences were made concurrent.
2. The prosecution case in brief is that on 15.11.99 at 5.30 A.M. at P.S. Bhojpur, District Moradabad one Chhotey Shah, resident of village Akka, Bhikhanpur, District Moradabad submitted a written report Ext.Ka-1 alleging that when on 15.11.99 at 3.00 P.M. he was going on his duty to Police Station Bhojpur he saw a dead body lying under Dhela River bridge in the water. The said unknown man was aged about 42 years and there was mark of injury over the temporal region of the dead body. On the basis of the said written report a chick F.I.R. was prepared. A case was registered vide G.D. Ext.Ka-4. The investigation was taken over by Sub Inspector A.P. Singh who was the then Station Officer, Police Station Bhojpur. He reached at the place of occurrence, got the inquest report prepared and sealed the dead body. He prepared a site plan of the place of occurrence where the dead body was recovered. He took a Titan Wrist Watch from the left arm of the dead body and prepared memo. He sent the dead body for post mortem examination. The post mortem examination of the dead body was conducted by Dr. P.K. Shukla, Medical Officer, District Hospital, Moradabad on 16.11.99. According to the post mortem examination report the deceased was male aged about 42 years. His death had taken place one and half days before the autopsy. The death was caused due to, coma, haemorrhage and shock. The doctor found following ante mortem injuries:-
1) Gun shot wound of entry size 10 cm x 6 x neck cranial cavity deep at the site of left pinna of ear adjoining part of neck.
On neck base of brain left temporal lobe of brain common carotid artery. Jugular vein. Larynx & Pharynges found lacerated through & through toward right side of neck (front left to right) one big metallic Bullet was recovered at the side of wound on right side of neck muscles.
3. One Rajeev Kumar PW-2 came to the police station and identified the deceased with the help of clothes and photograph of the dead body. He told that the deceased was his younger brother Manoj Kumar. The investigating officer recorded the statement of the witness and came to know that the licensed revolver of the deceased was robbed after committing his murder. On 30.12.99 the motorcycle of the deceased was recovered from a pond of village Dharak Nagla, P. S. Bhojpur. A memo was prepared. The investigating officer sent the pant with belt, shirt, baniyan and underwear. A pair of shoes recovered from the dead body was also sent for the chemical examination and a report was received from Vidhi Vigyan Prayogshala, Agra which shows that the blood stains were found on all the articles recovered from the dead body of the deceased and human blood was found on shirt, baniyan and underwear. It was further revealed from the statement of the witness that the accused appellants took the deceased to the house of the accused Jamshed on 14.11.1999 and thereafter the deceased was not seen alive.
4. The accused Jamshed died during the pendency of the trial and his case stands abated.
5. Learned Additional Session Judge, Mordabad charged the appellants Khursheed and Rafiq for the sentence under Section 302 read with Section 34, 201 read with Section 34 and 394 read with Section 34 I.P.C. The accused persons pleaded not guilty and claimed trial.
6. The prosecution examined PW-1 Chhotey Shah, the informant, PW-2 Rajeev Kumar, PW-3 Yogesh Kumar Bishnoi, PW-4 Dr. P.K. Shukla, PW5 Nyajar Shah, PW-6 Vijendra Singh and PW-7 S.S.I. A.P. Singh.
7. The accused appellants Rafiq and Khursheed in their statements under Section 313 Cr.P.C. have denied the prosecution case and stated that they have been falsely implicated due to enmity. They have further stated that they would lead evidence in defence but they did not lead any evidence for defence.
8. We have heard Shri Satish Trivedi, learned senior counsel assisted by Shri Bhram Singh, for the appellants and Shri S.S. Yadav, A.G.A. for the State and carefully perused the evidence on record.
9. It is undisputed that an unknown dead body was recovered from the Dhela river near Ganeshpur. The aforesaid dead body was subjected to the postmortem examination on 16.11.99 by Dr. P.K. Shukla PW-4 who has proved the postmortem examination report. He has stated that it is possible that the death of the deceased had taken place on 15.11.99 on any time in the afternoon. The ante mortem injury, which was gunshot wound, was sufficient to cause death.
10. The aforesaid dead body was identified on 22.11.99 by Rajeev Kumar PW-2. On the basis of the photograph and clothes of the deceased it stands proof that the dead body was of Manoj Kumar, the younger brother of PW-2 Rajeev Kumar. The witness PW-2 Rajeev Kumar has stated that the deceased Manoj Kumar was living in village Khwajapur and managing 500-600 big has agricultural land.
11. Regarding motive of the occurrence there is evidence of Rajeev Kumar PW-2 who has stated that the deceased Manoj Kumar had sold to the deceased accused Jamshed 428 quintals paddy and 27 quintals Basmati valuing Rs. 2,50,000/-. The price was not paid by Jamshed and he was avoiding to pay the money. He has stated that this fact was informed to him by the deceased.
12. PW-3 Yogesh Bishnoi is brother-in-law of the deceased Manoj Kumar. He has stated that on 13.11.99 the deceased came with him to Kashipur and he was perturbed. The deceased told that he sold paddy worth Rs. 2,50,000/- 22-25 days ago to Jamshed but he was not paying the money and avoiding to do so. He called him to has house on 14.11.99. Niyaz Shah PW-5 has stated that he was a servant of the deceased Manoj Kumar. He has told that the accused persons took the paddy in his presence on 14.11.99.
13. There is evidence of the last seen of the deceased alongwith the appellants. There is solitary testimony of PW-5 Niyaz Shah who has claimed that he was working as labourer for the last 8-10 days in the house of the deceased Manoj Kumar. On 14.11.99 the appellants accused Khursheed and Rafiq came to the house of the deceased and informed that he was called by the deceased accused Jamshed for settling the account of paddy. All the three persons went to Ratipura by the motorcycle of the deceased. The deceased had also asked him to come there. He was instructed to sit at the shop. The statement of this witness does not inspire the confidence on the reasons given below:
14. Firstly: he has claimed that he saw the appellants Khursheed and Rafiq with the deceased entering into the house of Jamshed. It has come in his statement that the appellants and the deceased went on the motorcycle and he alone went subsequently. He saw all of them entering into the house of Jamshed. He has not stated that how he was able to see the deceased entering the house when he did not come with him.
15. Secondly: he told that when the deceased did not come out, he called the deceased. The mother of Jamshed came out and he enquired that whether the deceased came there. There is no justification for him to ask whether the deceased came in the house of Jamshed or not, when he himself saw the deceased entering into the house. Moreover, he did not insist to meet the deceased when he did not come out after a long wait.
16. Thirdly: the witnesses according to his statement came back to the house of Manoj Kumar at about 2.00 P.M. without having any information of the deceased he did not disclose anything to any one at the house of the deceased especially when he was not allowed to meet the deceased at the house of Jamshed.
17. Fourthly: the witnesses has stated that the accused persons took the paddy in his presence on 14.11.99 which is a case of none and lastly he has admitted that he was working with the deceased only for the last 8-10 days but he stood a prosecution witness for the murder case of Pankaj, the brother of the deceased. It all shows that this witness is not a person worth reliance and no reliance should be placed on his statement.
18. Now there is a solitary evidence of motive that the deceased sold the paddy of Rs. 250,000/- to accused deceased Jamshed and the money was not paid to him. Therefore the murder was committed. In this connection it is relevant to note that PW-2 Rajeev Kumar, the brother of the deceased has stated that he had business transaction with Jamshed for the last several years. The transaction was on credit. The accused Jamshed had paid 3-4 lacks before the occurrence. He had no enmity with Jamshed. There was no justification to kill the deceased on this ground alone. So the motive as suggested by the prosecution does not appeal to reason. Moreover the motive alone is not sufficient to base the conviction.
19. In view of the aforesaid we are of the opinion that the learned Additional Sessions Judge has erroneously convicted and sentenced the accused appellants. The prosecution has miserably failed to bring home guilt against the appellants and they deserve to be acquitted.
20. As a result we are of the view that this appeal deserves to be allowed and is hereby allowed.
21. The conviction and sentence against the accused person is set aside and the appellants are acquitted of the charge under Section 302/34, 201/34 and 394/34 I.P.C. They be released forthwith if they are not wanted in any other case.
22. Copy of this judgment be sent to the court concerned forthwith for compliance.