Hon'ble Mrs. Sunita Agarwal,J.
(Delivered by Hon'ble Sunita Agarwal,J.) This Government Appeal arises out of the judgement and order of the Additional District and Sessions Judge/Special Judge (E.C. Act) Basti, dated 30.11.2009, acquitting the accused/respondent Bisai alias Vishwanath Bhar under sections 376, 302/34 I.P.C. in S.T. No. 169 of 2007.
We have heard learned A.G.A. and perused the trial court record. The accused-respondent Bisai alias Vishwanath was implicated in the case of rape and murder of deceased Km. Priti Shukla. It was an unnamed First Information Report lodged by the uncle of the deceased on 8.12.2006. Respondent Bisai alias Vishwanath was arrested on 25.12.2006 from his house. The washed Kurta on which bloodstains were visible, was recovered, sealed and exhibited. At the pointing out of the accused "Hasia" was recovered from his house. Further a bloodstained Gamcha was recovered near the pond at the pointing out of the accused Bisai alias Vishwanath. Few long hair strands wrapped in the said Gamcha were also found. Both the articles were separately sealed and exhibited. Kurta, Gamcha and hair were sent to Forensic Science Laboratory for chemical examination, however, "Hasia" was not sent. It is apparent from the record of the laboratory that human blood was found on Kurta. The blood found on the Gamcha was disintegrated as such its origin could not be ascertained. No blood was found on the hair, however it was opined that hair were of human origin. The semen sample of the accused Bisai alias Vishwanath collected in the district jail was sent to the chemical laboratory but there is no report that semen found in the vaginal smear of the deceased tallied with the semen sample. P.W.7 Shobh Nath Shukla is the witness of last seen of accused Babloo alias Raj Kumar and Bisai alias Vishwanath .He stated that on 8.12.2006 at about 6 A.M. he saw both the persons sitting near Pullia which was at a short distance from the sugar cane field, where murder of Priti was committed. When he saw both the accused, they appear to be perplexed. P.W.4 Chintaharan is the witness of recovery of Kurta and Gamcha at the pointing out of accused Bisai alias Vishwanath. P.W.11, the Investigating Officer admitted that "Hasyia" stated to be murder weapon was not sent for chemical examination. Trial court found from the evidence on record that it could not be ascertained that accused Bisai alias Vishwanath was seen near the place of incident in the morning. The incident is said to have occurred in the early morning. However, there is no evidence much less the cogent evidence to connect the co-accused Bisai alias Vishwanath with the crime. Moreover in the statement of P.W.2 Arun Kumar Shukla father of the deceased and P.W.11, the Investigating Officer it has come up that few days before the incident accused Babloo alias RajKumar tried to molest the daughter of Bisai alias Vishwanath. However, a settlement was arrived at with the intervention of the villagers. Thus it seemed improbable that accused Bisai alias Vishwanath would have participated in the crime of rape and murder of Priti with Babloo alias Rajkumar. Moreover accused Babloo alias Rajkumar in his confessional statement under section 164 Cr.P.C.. did not mention the presence or participation of Bisai alias Vishwanath in the incident. Thus having carefully examined the evidence on record though a doubt or suspicion arises against Bisai alias Vishwanath by reason of recovery of blood stained Kurta and Gamcha with long hair strands,yet we are unable to hold that trial court after taking consideration of all the circumstances in the case was wrong in not treating the circumstances as conclusive of the guilt of accused/respondent Bisai alias Vishwanath.
For the reasons above it is not a case which calls for interference with the acquittal order of the trial court and we accordingly dismiss the appeal and maintain the acquittal order.
Date:26.8.2014 Aks