Court No. - 47
Case :- GOVERNMENT APPEAL No. - 436 of 2013 Appellant :- State Of U.P. Respondent :- Mustkeem & Another Counsel for Appellant :- A.G.A.
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Anil Kumar-IX,J.
Heard learned Additional Government Advocate on behalf of State of Uttar Pradesh.
This government appeal has been filed from the judgment of acquittal dated 22.10.2012 passed by Additional Sessions Judge, Court No. 1, Saharanpur in Sessions Trial No. 360/2009 (State of Uttar Pradesh Vs. Mustkeem and another) arising out of Case Crime No. 217/2009 for the offence under Sections 304 read with section 34 I.P.C. (hereinafter referred to as 'r.w.s.') Police Station- Sadar Bazar, District Saharanpur.
F.I.R. of the incident was lodged on 27.03.2009 at 9:30 a.m. by Smt. Munesh (PW-1) wife of deceased Umesh. In the F.I.R. it has been stated that deceased Umesh was husband of first informant (Smt. Munesh). He used to earn his livelihood by putting a fruit thela at Diwani court. Deceased Umesh developed his friendship with Mustkeem son of Zamil Mahmood, r/o Chunheti, Police Station- Rampur and Zahid son of Jahoor Hasan, r/o Noorbasti, Police Station- Kotwalinagar, District Saharanpur and they used to drink jointly. On 22.03.2009 at about 8:00 p.m., Mustkeem and Zahid came to the house of Umesh (deceased) and took deceased with them. Thereafter Umesh (deceased) did not return to his house. On 24.03.2009, Brahm son of Nakali Ram r/o Manoharpur informed him that on 22.03.2009 at 9:00 p.m., he had seen the deceased alongwith Mustkeem and Zahid while purchasing liquor at I.T.I. Smt. Munesh and her mother Naurati were searching the deceased and on 26.03.2009 in the morning, she came to know that a dead body was found at Rakkha colony by the side of New Dwarikapuri which was kept in mortuary. Then, she went to mortuary and recognized the dead body as her husband Umesh. It appears that after drinking the accused has committed murder of her husband assaulting him with bricks. After investigation, police has submitted charge-sheet against respondents under Section 304 r.w.s.34 I.P.C.
In order to prove the prosecution story, prosecution examined Smt. Munesh (Informant) PW-1, Smt. Naurati, mother of the informant PW-2, Dr. Manoj Chaturvedi PW-3 to prove the post mortem report, Constable Darban Singh PW-4, Constable Jitendra PW-5, Sub - Inspector Sunil Dutt PW-6 and Raj Pal PW-7 as formal witnesses.
After considering the evidence on record, trial court found that although dead-body of the deceased was found on 26.03.2009 in the morning and it was recognized by the first informant (Smt. Munesh) and her mother (Naurati) and they have also taken custody of dead body on that day but in the writing given on 26.03.2009, they have not shown any doubt regarding the murder of deceased by the accused. There is no reason for delay in lodging the F.I.R., which is more than 20 hours. The deceased was a man of history - sheeter and possibility for his murder by other person, cannot be ruled out. Thus, respondents were acquitted from the charges levelled against them.
We have considered the arguments of Additional Government Advocate. The prosecution in the present case, is based upon circumstantial evidence. One of the circumstances is alleged that deceased was taken by the accused on 22.03.2009 at 8:00 p.m. from his house and the other circumstance is on the pointing of the accused the brick was recovered, used for committing the crime. So far as the fact that the deceased was taken by the accused on 22.03.2009 at 8:00 p.m. from his house concerned, if this fact was correct then there was no reason for the informant to remain silent upto 26.03.2009 as the deceased did not return to his house thereafter. In the F.I.R. it is alleged that Brahm son of Nakali Ram informed her on 24.03.2009 that the deceased and accused were seen while purchasing wines and going together at I.T.I. but Brahm son of Nakali Ram was not produced in the evidence. Although dead body was received on 26.03.2009 by the informant from mortuary but she had taken more than 20 hours in lodging the F.I.R. For these reasons the fact that deceased was taken by the accused on 22.03.2009 at 8:00 p.m., has been disbelieved by the trial court.
The second thing is that trial court found that deceased was a man of bad character and several cases were registered against him. Thus, possibility of other person committing the crime cannot be ruled out. The reason assigned by the trial court is a cogent reason and no interference can be made by this court. The appeal has no merit.
In view of above, this application seeking leave to appeal is, accordingly rejected and consequently the appeal is also dismissed.
Order Date :- 28.11.2018 Sharad/-