Reserved
Court No. - 51 Case :- CRIMINAL APPEAL No. - 8097 of 2009 Appellant :- Maksudan Gaur Respondent :- State Of U.P.
Counsel for Appellant :- Anup Kumar Srivastava,Aalok Kumar Srivastava Counsel for Respondent :- Govt. Advocate
Hon'ble Vipin Sinha,J.
Hon'ble Umesh Chandra Tripathi,J.
(Delivered by Hon'ble Vipin Sinha,J.) The aforecaptioned appeal is arising out of a judgment and order of the Additional Sessions Judge, Fast Track Court No. 3, Deoria dated 20.12.2006 passed in S.T. No. 106 of 1998 whereby accused appellant Maksudan Gaur has been convicted and sentenced to undergo life imprisonment under Section 302 IPC and fine of Rs. 5,000/-, in default of which one year's further rigorous imprisonment.
We have heard Sri Alok Kumar Srivastava, learned counsel for the appellant and Sri R. K. Maurya, learned AGA for the State.
At the very out set, it has been informed that the present appellant is in jail. It is further informed that there were three accused persons as per the FIR, namely, Harish Dubey, Sushil Dubey and Maksudan Gaur. Of the said accused persons, one accused person namely Sushil Dubey has expired as far back in the year 2003 i.e. during trial itself and as far as second accused person Harish Dubey is concerned, he had filed an appeal before this Court being Criminal Appeal No. 294 of 2007, however, he too has expired during the pendency of the appeal before this Court.
The case of the prosecution as set up in the FIR, which was lodged by one Vrind Kumar Dubey, the brother of the deceased (Markandey Dubey), was that on 27.11.1997 at about 6.00 pm in the evening three persons, namely, Harish Dubey, Sushil Duebey and Maksudan Gaur had taken away the deceased i.e. the brother of the first informant from his house for the purposes of consuming liquor; Vashisth Dubey was also present at the time when the deceased had gone in the company of aforesaid three accused persons; subsequently they were seen consuming the liquor at brick kiln of Guddu Singh by one Awadhesh Pandey; after consuming the liquor, all the four persons walked of towards village; at about 8.30 pm, Awadhesh Pandey informed to the first informant at the house of the deceased that Markandey Dubey has been killed near the field of Sabhapati Mishra; on such information being received, the first informant has gone to the filed of Sabhapati Mishra and saw that Harish Dubey, Sushil Dubey and Maksudan Gaur leaving the spot and waking of from the place where the body was lying; the said three accused persons had committed the crime on account of previous enmity. The scribe of the FIR is one Jwala Dubey and the FIR was registered on 28.11.1997 at 10.00 in the morning at police station Kotwali, District Deoria.
The prosecution in support of its case has examined as many as eight witnesses. Vrind Kumar Dubey, (PW1) – the first informant, Jay Prakash Dubey (PW2), Awadhesh Pandey (PW3) – eyewitness, Jwala Dubey (PW4), Vashisth Dubey (PW5), Subhash Chand Sharma (PW6), Raj Kishore Tiwari (PW7) and Dr. J. P. Pandey (PW8), who has conducted the postmortem on the body of the deceased.
Before we proceed to examine the testimony of witnesses and the evidence on record, we may record the contentions as have been formulated by the learned counsel for the appellant, which are as under:
(a) The FIR is delayed;
(b) First informant is not an eye-witness;
(c) Awadhesh Pandey, who claims himself to be an eye- witness, is a chance witness;
(d) Jwala Dubey has been declared as hostile;
(e) appellant has been implicated on account of previous enmity;
(f) there is no recovery of Katta and empty liquor bottles from the spot;
(g) there is nothing on record which may show that the deceased has consumed the liquor with the accused persons even though blood stained soil was collected and was sent for examination but there is no report in this regard;
(h) it is a case of circumstantial evidence where important links are missing and chain is not complete;
(i) why was the deceased permitted by the first informant to go with the accused persons if he was aware of the previous enmity;
(j) no alcohol was found in the postmortem report of the deceased even though it is the consistent case of the prosecution that the deceased was seen consuming liquor with the accused persons by Awadhesh Pandey;
(k) there is no independent witness On the other hand, learned AGA has opposed the appeal with the contention that eye-witness account is present; there is last seen evidence; eye-witness Awadhesh Pandey has given a consistent statement.
Keeping in view the contentions as have been raised at the Bar of this Court, the Court proceed to examine the testimony of witnesses, who have been examined in support of the prosecution case.
The first witness examined is the first informant himself, namely, Vrind Kumar Dubey, who has been examined as PW1. The relevant extracts of his testimony are being extracted herein below:
….......esjs xkao ds gjh'k nwcs o lq'khy nwcs rFkk edlqnu xksM esjs ?kj ls 'kjkc ihus ds cgkus cqykdj ys x;sA ml le; esjs njokts esjs vykok of'k"B nwcs Hkh ekStwn FksA mDr rhuks vfHk;qDr esjs HkkbZ ekjd.Ms; dks xqMMw flag ds HkV~Bs ij ys tkdj 'kjkc ih;sA mu yksxks dks 'kjkc ihrs gq, xzke eqUMsjk cqtqxZ ds vo/ks'k ik.Ms; us ns[kkA ….......mlh fnu jkr dks lk<s vkB cts vo/ks'k ik.Ms; vkdj esjs ?kj crk;k fd rqEgkjs HkkbZ dks lHkkifr feJk ds [ksr eas djhc vkB cts jkf= dks gjh'k nc]sw lq'khy nwcs o edlwnu xksM us ekj Mkyk gSA vo/ks'k us ;g Hkh crk;k fd eS /kekds dh vkokt lqudj lHkkifr feJk ds [ksr ds rjQ x;k rks ns[kk fd ogkW ls gjh'k nwcs] lq'khy nqcs rFkk edlwnu xksM esjs HkkbZ ¼dk0 QVk½ nwcs dh gR;k djds tk jgs FksA vo/ks'k dh ckr lqudj eS dkQh Hk;Hkhr gks x;k FkkA ftlds dkj.k jkf= eas fjikVs Z djus Fkkus ugh tk ldkA nqljs fnu eSa lqcg yk'k ds ikl tkdj ns[kk rks esjs HkkbZ dh yk'k lHkkifr feJk ds [ksr eas iMh gqbZA mudk pgjs k Nr foNRr gks x; Fkk mlds ckn eS vius xkao ds Tokyk nwcs ls cksydj nj[kkLr fy[kok;s rFkk i<+us ds ckn ml ij viuk gLrk{kj cukdj nj[kkLr ys tkdj Fkkuk dksrokyh eas fn;k ftl ij esjk eqdnek fy[kk x;kA ….......-esjs HkkbZ dh gR;k ds pkj ikap ekg iwoZ vfHk;qDr edlwnu xksM ds HkkbZ pUnzHkku xksM dh gR;k gks xbZ Fkh mlesa edlwnu xksM dks 'kUdk gks x;k Fkk fd esjs HkkbZ e`rd ekjd.Ms; pUnzHkku dks ys tkdj 'kjkc ih;s FksA vkSj ckn eas pUnzHkku xkMs dh gR;k gks xbZA ftlls vfHk;qDr edlwnu dks ;g 'kd gks x;k Fkk fd pUnzHkku dh gR;k eas ekjd.M;s dk gkFk FkkA ….......-eS jkr Hkj dgh ij fgyk Mqyk ughA dgh ij vk;k x;k ughA eS jkr eas gh tku x;k fd ejss s HkkbZ dh gR;k gks x;h gSA tkudkjh gksus ds ckn eS Hk;Hkhr gks x;k dgh x;k ugh D;ksfd esjh Hkh gR;k gks ldrh FkhA nwljs fnu eS nj[kkLr Tokyk nwcs ls fy[kokdj Fkkus x;k FkkA lqcg eS yk'k ds ikl x;k rks ns[kk dh yk'k iMh gSA lk<s vkB cts jkf= dks eq>s vius HkkbZ ds gR;k ds ckjs eas tkudkjh gks x;h FkhA ….......--rhuks vfHk;qDrkas dks eS vius njokts ls vius HkkbZ dks ys tkrs gq, ns[kk FkkA vkSj ckn eas vo/ks'k ik.Ms; us Hkh crk;k fd gjh'k nwcs lq'khy lq'khy nwcs] edlwnu xksM rqEgkjs HkkbZ dh gR;k dj fn;s gSA ….......---vo/ks'k ik.Ms; ds crkuss ij gh eq>s tkudkjh gqbZ fd mijksDRk vfHk;qDr us esjs HkkbZ dh gR;k fd, gSA ….......-- eSus fdlh dks 'kjkc ihrs gq;s ugh ns[kk FkkA cfYd vo/ks'k ik.Ms; us ns[kk FkkA vo/ks'k ik.Ms; eqMsjk cqtqxZ ds jgus okys gSA eS HkV~Bk ij tkdj iwNrkN gR;k ds fo"k; eas ugh fd;k FkkA eq>s vo/k'ks ik.M;s us crk;k Fkk fd mijksDr vfHk;qDr x.k us gh esjs HkkbZ dh gR;k fd;k FkkA ….......-esjh jaft'k rhuks eqfYte ls FkkA vfHk;qDr edlwnu ;g lqcgk dj Fkk fd esjs HkkbZ pUnzHkku dh gR;k eas er` d ekjd.M;s dk gkFk gS blfy, mlus ejs s HkkbZ dh gR;k bu nksuks yksxks dks lkFk eas ydjs dj fn;k FkkA rhuks vfHk;qDr igys ls ,d gh lkFk jgrs FksA eq>s igys ls irk Fkk fd ;s rhuks yksx ,d lkFk jgrs FksA ….......---?kVuk LFky ij eS nwljs fnu x;kA rks ns[kk fd esjs HkkbZ dh gR;k gqbZ gSA ryk'k ?kVuk LFky ij iM+h gSA ?kVuk LFky dk irk jkr eas gh eq>s gks x;k FkkA jkr eas ng'kr ds ekjs ?kVuk LFky ij ugh igqapkA ng'kr eq>s eqfYteks ls FkkA lHkh eqfYtekas ls eq>s ng'kr FkkA lcls igys nq'euh gjh'k nwcs FksA mlh nq'euh dks ysdj gjh'k nwcs us edlwnu] lq'khy ls gR;k djk;k tc gR;k gqvk rks vo/ks'k ik.Ms; crk;k dh gR;k gks xbZ gS rc eS bu yksxks ds ckjs eas tkukA …...gR;k fdl dkj.k ls gqvkA eS ugh tkurk gwWA”
Thus, from the aforesaid testimony it is crystal clear that the first informant is not an eye-witness to the actual incident which took place near the brick kiln where the body was recovered. It is also apparent that first informant admits that he was informed by one Awadhesh Pandey at night itself about the incident but he made no attempt to reach the spot or the place of occurrence to find out as to whether the deceased was required to be taken to the hospital or not or as to whether he was alive or not. It is also apparent that he made no attempt whatsoever to reach the place of occurrence at night itself, he stayed back at the house whole night and reached the place of occurrence only in the morning. He also does not state that Awadhesh Pandey had come to his house alone or accompanied by any other persons because Awadhesh Pandey in his testimony has stated that about 20 to 25 persons had gathered at the place of occurrence and they had seen the occurrence at the place of occurrence.
At this stage itself, it may be appreciated that if the first informant was aware as mentioned in the FIR that there existed previous enmity between the parties then as to why he permitted the deceased to go in the company of the accused persons. It may also be appreciated that as far as the FIR is concerned which has been lodged by the first informant there is no mention in the said FIR regarding the use of Katta, whereas on the other hand, Awadhesh Pandey clearly stated that he had informed the first informant about the said fact.
Learned counsel for the appellant contends that infact it is a case of night incident and somebody had killed the brother of the first informant and when the body was discovered in the morning it was only then the FIR has been lodged after much delay and the delay has been caused on account of much deliberation and it was only thereafter that the accused persons were named in the FIR.
The next witness is Jay Prakash Dubey, who has been examined as PW2, however, he has been declared as hostile, even though he in his examination-in-chief has clearly stated that “Markandey Dubey ka panchayatnama uske samne nahi hua tha, likhapadhi hone ke bad wah aaya tatha uska daskhat karaya gaya uske samne panchayatname mein Vashisth Dubey, Ram Pratap Dubey, Bhaskar Dubey hastakshar nahi banaye the”.
The next witness is Awadhesh Pandey, who has been examined as PW3 and who as per the prosecution case as set up in the FIR has actually seen the incident and thereafter reached to the house of the first informant and informed him about the incident. The relevant extracts of his testimony are being quoted herein below:
….........?kVuk gq, vkt ls djhc 8 lky ls mij gqvkA eS xqM~Mw flag ds HkV~Bk ij x;k Fkk jkf= ds 8-00 ctk Fkk ogkW ij e`rd ekjd.Ms nwcs vkSj vkSj edlwnu] lq'khy] gjh'k nwcs nk: HkV~Bk ij ih jgs Fks pkjks yksx ,d gh ikl HkV~Bs ij cSBdj nk: ih jgs FksA ….......------mlds ckn FkksM+h nsj ckn gjh'k] edlwnu] lq'khy] o ekjd.Ms xkWo ds rjQ py fn;sA mld FkksMs nsj ds ckn dV~Vk dk vkokt gqvkA ge yksx cgqr ls yksx HkV~Bs ls vkokt ds rjQ nkSMdj x;s rks HkV~Bs ls iwjc lHkkifr feJ ds [ksr eas x;s rks ge ykxs ns[ks fd ekjd.Ms nwcs dk izk.k fudy jgk Fkk mudks xksyh yxk FkkA ogkW ij ekSTkwn gkyr eas lq'khy nksuks vkneh ds gkFk es dV~Vk FkkA edlwnu o -….......-----jkr va/ksjh FkhA 'kjkc ihus okys LFkku ij eS x;k FkkA tc eS igqWpk rks ;s yksx 'kjkc ih pqds Fks 'kjc ihdj pkjks O;fDRk ogkW cSBs gq, FksA ….......-------'kjkc ihus ds ckn lHkh eqyfteku xkWo dh rjQ pys x;sA eS ihNs&ihNs ugh x;k ogh HkV~Bs ij gh :d x;kA HkV~Bs ij ,d ?k.Vs rd :ds jgsA HkV~Bs ls bu yksxks ds xkao dh nwjh ,d fd0eh0 gSA eS ,d ?k.Vs ds chp eas dgh vk;k x;k ughA ml ,d ?k.Vs ds ckn vkokt lquus ds ckn ge ogkW x;s FksA ?kVuk LFky ij tc ge yksx x;s rks 20&25 vkneh Fks ftles HkV~Bs ds yscj oxSjg Hkh FksA ….......------HkV~Bs ls ?kVuk LFky ij igqWpus eas 15&20 feuV yxk FkkA ?kVuk LFky ij igqWpus ij ekjd.Ms nwcs dk lkWl fudy jgk FkkA ml le; ekjd.Ms dqN cksy pky ugh jgs Fks csgks'k FksA geus mudsk mBkus dh dksf'k'k ugh dhA oks ftl gkyr eas Fks mlh gkyr eas NksM+dj eS xkWo eas pyk x;kA xkWo eas tkdj eS o`Unk nwcs ds ;gkW lwpuk fn;kA lwpuk nsus ds ckn fQj ?kVuk LFky Ikj jkr dks ugh x;sA -….......------xksyh tc pyh vkSj vkokt gqvk rc eS HkV~Bs ij ls pykA eSA igys crk pqdk gwW fd 15 feuV tkus eas yxk FkkA ejs s HkV~Bs ls pyus ds ioZw xksyh py pqdh FkhA ….......----- o`Unk nwcs tks ,Q0vkbZ0vkj0 fy[kk;h gS muls eSus crk;s Fks fd lq'khy o edlwnu us e`rd ekjd.Ms dks dVVk ekjk gSA o`Unk nwcs us vius izFke lwpuk fjiksVZ eas vxj ;g ckr fd lq'khy o edlnw u us e`rd ekjd.Ms dks dV~Vk ekjk gS ;fn ugh fy[kk gS rks bldk dksbZ otg ugh crk ldrkA ….......------ogkW ij nhoku th ls lkjh ckr crk;s FksA tks jiV fy[kh x;h Fkh mleas eSus viuk gLRkk{kj ugh cuk;k FkkA o`Unk us esjs lkeus jiV ugh fy[kok;k FkkA esjs tkus ds ckn ikWp&lkr ?k.Vs ckn ;fn njksxk th igqWps gksxs rks bldh tkudkjh eq>s ugh gSA eSus njksxk ds vkus tkus dk dksbZ irk ugh yxk;k FkkA njksxk us esjk c;ku fy;k FkkA eSus c;ku eas ml le; D;k dgk Fkk ;kn ugh gSA ?kVuk ds N% eghuk ;k lkYkHkj ;k nks eghus ckn eq>ls njksxk feys eq>s ;kn ugh gSA njksxk [kq[kqUnw ls vk;s FksA oks yksx ,d thi FksA iqfyl okyks dks vkrs eSus ns[kk vkSj vius nwdku ls ns[kkA oks yksx iqfyl okys nf{k.k ls vk;s FksA iqfyl okyks ds lkFk eas ij ugh x;kA ?kVuk LFky ….......?kVuk LFky pkSjkgs ds yksx fn[kk;sA mlesa ls fdlh dk uke eS ugh crk ikmWxkA ;g dguk xyr gS fd eSus dksbZ ?kVuk ugh ns[kk gS vkSj QthZ xokgh ns jgk gwWA”
From the aforesaid testimony, it is crystal clear that Awadhesh Pandey admits that when he reached the spot he saw that “Markandey Dubey ka praan nikal raha tha usko goli laga tha” but surprisingly he made no attempt to save the injured or to take him to the hospital even though as per his own statement, about 20 to 25 persons had arrived at the spot. On the other hand, we find that he walked off from the place of occurrence all alone and reached the house of the first informant and informed him about the incident. It is also very surprising that no explanation has come forward as to what exactly Awadhesh Pandey was doing at the place of occurrence in the night. He appears to be a chance witness, as has been contended by the learned counsel for the appellant. No reason has been brought forward to show or to establish his presence at the place of occurrence. It may further be appreciated that even though Awadhesh Pandey says that he has seen the persons consuming liquor but as per the postmortem there is no presence of alocohol and the report shows that “Amashay khali tha”. It has also to be appreciated that investigating officer did not collect any material from the place of occurrence which may show that the accused persons had consumed liquor along with the deceased. There is no recovery of liquor bottles and glasses or anything which may show consumption of liquor at the place of occurrence.
It may further be appreciated that as per the own testimony of Awadhesh Pandey, the place of occurrence is at quite some distance from brick kiln where he was and he took 15 to 20 minutes to reach the actual place of occurrence. It is beyond imagination that as to why accused persons after indulging in the act of shooting the deceased would remain at the spot for about 15 to 20 minutes and wait for some people to arrive at the spot and become witness. It is also to be appreciated that Awadhesh Pandey in his testimony stated that about 20 to 25 people arrived at the spot and were present with him but not a single person has been named who may say that he was present and who might have seen the occurrence and who might have established the presence of Awadhesh Pandey at the place of occurrence. There are no independent witnesses of the incident. It is the solitary evidence of Awashesh Pandey (who had no reason to be there at the place of incident) upon whom the entire prosecution story is based upon. He also does not say as to why if he has seen the injured breathing as per his own statement he did not make any attempt to take the inured to the hospital with the help of other person and thus the contention of the appellant appears to be valid that infact it is a case of blind murder which has taken place in the night and it was only when the body was discovered in the morning that the prosecution came forward and the story has been set up in the FIR keeping in view the enmity. It is also apparent that even in the morning he did not go to the place of occurrence along with the police even the statement appears to be recorded after a period of six months or a year. The fact remains that the prosecution has miserably failed to establish the presence of Awadhesh Pandey at the place and time of incident.
Next witness to be examined is Jwala Dubey, who has been examined as PW4 and who is also the scribe of the FIR he is a formal witness and his statement need not to be gone into in detail.
The next witness to be examined is Vashisth Dubey, who has been examined as PW5 and who has been named in the FIR itself with the contention that when the deceased had gone in the company of the accused persons or the deceased was taken by the accused persons from the house, Vashisth Dubey was present, however, the fact remains that Vashisth Dubey has been declared as hostile. He categorically states herein as under:
….......?kVuk ds fnu lka;dky 6-00 cts eS vius ? kj ls e`rd ekjd.Ms nwcs ds ?kj ds ikl ls gksrs gq, eS ugh tk jgk Fkk vkSj u rks esus ml le; e`rd ekjd.Ms nwcs o muds HkkbZ o`Unk nwcs dks ns[ksA vkSj u rks eS vfHk;qDrx.k edlwnu xksM+] gjh'k nwcs] lq'khy nwcs dks e`rd ekjd.Ms nwcs dks ,d lkFk ekjd.Ms nwcs ds ?kj ij ,d lkFk igqWprs gq, ns[kk Fkk vkSj u rks ekjd.Ms nwcs dh mijksDRk rhukas ns[kkA yksxks }kjk 'kjkc ihykus gsrq ys tkrs gq, ….......vfHk;qDRk gjh'k nwcs] lq'khy nwcs] edlwnu o ekjd.Ms nwcs ,d lkFk 'kjkc ihrs Fks ;k ugh ;g eS ugh tkurk gWwA njksxk us eq>ls bl ?kVuk ds ckor iwNrkN ugh fd;k FkkA lk{kh dks /kkjk 161 lh0vkj0ih0lh0 dk c;ku i<dj lquk;k x;k rks xokg us dgk fd bl izdkj dk dksbZ c;ku eSus ugh fn;k Fkk njksxk us dSls fy[k fy;k otg ugh crk ldrkA eS vkSj Tokyk nwcs dy Hkh vk;s Fks vkSj vkt Hkh vk;s gSSA ;g dguk xyr gS fd eS eqyftekukas ls feydj Mjdj rFkk xkoa ds gkus s ds ukrs >wBh xokgh ns jgk gwWA ;g Hkh dguk xyr gS fd eqyfteku ncax fdLe ds gS blfy;s Mj ds dkj.k >wBh xokgh ns jgk gwW.”
The next witness to be examined is PW6 - doctor Dr. J.
P. Pandey, who has conducted the post-mortem on the body of the deceased. The doctor found the following injury on the body of the of the deceased:
“1- vkXus;kL= ds xksyh dk izos'k LFkku 3lseh x 2-5lsehx efLr"d xqgk ds vUnj rd cka;s dku ls 5 lseh0 mij ekStwn FkkA ?kko ds fdukjs vUnj dh rjQ eqMs+ Fks rFkk ogka ds cky >qyls FksA
2- vkXus;kL= dh xksyh ds fudyus dk LFkku 13lseh x 14lsehx efLr"d xqgk ck;s psgjs ds ck;s rjQ ekStwn FkkA ?kko ekFks ls ysdj <w<h rd ekStwn Fkk vkSj mlds fdukjs cqjh rjg ls QVs FksA ?kko uacj 1 ,oa 2 ,d nwljs ls fey jgs Fks vkSj ?kko eas dkjrlw dh fVdyh ik;h x;hA
3- vkXus;kL= ds xksyh ?kqlus dk LFkku 3lseh x 2.8lsehx efLr"d xqgk lj ds nkfgus rjQ] nkfgus dku ds Bhd mij ekStwn FkkA ?kko ds fdukjs vUnj dh rjQ ncs FksA
4- vkXus;kL= dh xksyh ds fudyus dk LFkku 15lseh x 13lsehx efLr"d xqgk psgjs vkSj ekFks ds nkfgus rjQ ekStwn FkkA ?kko ds fdukjs cqjh rjg ls QVs FksA ?kko uacj&3 vkSj 4 ,d nwljs ls fey jgs Fks vkSj mles dkjrwl dh fVdyh ik;h x;hA vkUrfjd ijh{k.k eas lj dh lHkh gMMh VwVh Fkh] efLr"d dh f>Yyh vkxs ds rjQ lwth o Qvh Fkh] efLr"d vkxs dh rjQ Qvk Fkk] djksV dk vk/kkj VwVk Fkk] fupyk tcM+k QzSDpj Fkk] vkek'k; [kkyh FkkA e`R;q dk dkj.k 'kkWd vkSj vf/kd jDrJko Fkk tks fd e`R;q iwoZ pksVkas ls vk;h FkhA lk{kh us ikLVs ekVZe fjikVs Z izn'kZ d&14 dks lkfcr fd;k gSA e`rd ds 'kjhj ij vk;h pksVas 27-11-1997 ds 08 cts jkr dh gks ldrh gS rFkk pksV uacj& 1 o 2 Qk;j vkEkZ ds ,d gh izgkj ls lVkdj ekjus ls vk ldrk gSA pksV uacj&3 o 4 vkXus;kL= ds FkksM+h nwjh ls ekjus ls vk ldrh gSA”
From the postmortem report, it is clear that no liquor was found in the body of the deceased, however, the entire story of prosecution was that Awashesh Pandey has seen deceased consuming liquor which is a consistent statement of Awadhesh Pandey thus there could have been no reason as to why no liquor was found in the body of the deceased. Apparently Awadhesh Pandey is not a credible witness and is not an eye-witness to the incident.
The testimony of PW7 – Investigating Officer may also be looked into which shows that even though the blood stained soil was collected by him but there is no report on record from forensic department. The investigating officer in his statement says that ghtanasthal par koi katta baramad nahi hua, jaanch ke liye bheje gaye khoon aluda ki jaanch report patrawali mein nahi hai.
Learned counsel for the appellant has very strongly and vehemently attacked and challenged the testimony of Awadhesh Pandey and has raised serious contention with regard to the credibility of the said witness. He has very fairly pressed the appeal with the contention that it is a case of blind murder and nobody has seen the incident and the FIR has been lodged after much delay and with most deliberation and consultation in the morning, even though incident has taken place at night. He further contended that conduct of the brother of the deceased is highly surprising and not trustworthy. As far as witness Awadhesh Pandey is concerned, he appears to be chance witness and his testimony is full of contradictions and cannot be relied upon.
Learned counsel for the appellant has rightly contended that it is a case of circumstantial evidence and important links are missing in view of the fact that the first informant is not an eye-witness and the person who has been named in the FIR as a witness of last seen has been declared hostile and has denied the entire prosecution story and the fact that the presence of Awadhesh Pandey at the place of occurrence is doubtful, as the same has not been established either by some independent witnesses or by he himself showing as to what were the reasons for him to be present at the spot and at the time of occurrence.
It has very strongly been contended by the learned counsel for the appellant that if Awadhesh Pandey, who claims to be the eye-witness to the entire incident had infact really seen the accused persons drinking / consuming liquor with the deceased at the place of occurrence when all the accused persons and the deceased were consuming liquor and subsequently he again saw the deceased at the place of occurrence where the accused persons were standing near the body of the deceased when he arrived at the spot then he has to explain as to why the accused persons even after seeing Awadhesh Pandey permitted him to leave the place without being hurt or without making an attempt on his life. It is not the case of the prosecution that the assailants/accused had made an attempt on the life of Awadhesh Pandey as he was a witness to the crime but he escaped by running from the place of occurrence. Awadhesh Pandey himself says that about 25 persons have gathered at the spot but none of them have been examined by the prosecution or even named in the FIR or even in the testimony of Awadhesh Pandey himself which could have established his presence and could have lent some credibility to his testimony. It is beyond comprehension as to why accused persons would permit a person to witness the entire crime scene and thereafter permit to go escort free. There is nothing on record which may show or establish the presence of Awadhesh Pandey at the place of occurrence at the time of incident and his testimony is highly doubtful and the accused persons could not have been convicted on the basis of sole testimony of Awadhesh Pandey, who is not a trustworthy witness.
In view of the aforesaid facts and circumstances, it can be safely said that the prosecution has failed to prove its case beyond doubt. It would be sheer travesty of justice if a person is sent to the gallows on the sole evidence of PW3 Awadhesh Pandey which is full of aberration and contradiction.
Accordingly, the aforecaptioned appeal is allowed. The order dated 20.12.2006 impugned in the aforecaptioned appeal, convicting and sentencing accused-appellant is set aside. Consequences to follow.
It has been informed that the accused-appellant is in jail. It is directed that accused-appellant Maksudan Gaur shall be set at liberty forthwith, in case he is not wanted in some other case.
The copy of the order be certified to the court concerned in accordance with law.
Order Date :- 20.12.2018 Kuldeep