RAJESH SINGH Vs. STATE OF U P

JUDGEMENT

(1.) The judgment passed by the High Court allowing the appeal against acquittal and convicting the Appellant for the offence under Section 302 read with Section 34, IPC is in challenge in this appeal.

(2.) The three Appellants, Rajesh Singh (accused No. 1), Najai Srivastav (accused No. 2) and Mohan Singh (accused No. 3) came to be tried by the trial Court on the allegation that they had committed murder of a young boy Deepak on 11.4.1993 in the evening at about 5 OClock. Deceased Deepak was the son of Virendra Kumar (PW-1). Virendra Kumar (PW-1) was a lawyers clerk. When he and his brother S.K. Srivastav, an advocate, were going for having Rs. paan at the paan shop near Pico centre belonging to accused No. 1, Rajesh, they saw that the three accused persons were beating Deepak. Deepak was made to take the posture like a cock (murga) and two bricks were kept on his back. Rajesh was hitting him with those bricks and the hands and feet of the boy had been tied and accused Najai was hitting him with a can. When Virendra Kumar (PW-1) asked as to why his son was being beaten, it was told that Deepak had stolen some money. Virendra Kumar (PW-1) requested the accused persons to let the child go as they had already beaten him severely. However, Rajesh refused to leave him and threatened that if he does not go he would also be assaulted. This incident was seen by some others also. On this Virendra Kumar (PW-1) said that he would inform the police but waited. All the three accused persons dragged Deepak to house No. 128/21, C-Block, Kidwai Nagar, Kanpur which was the house of accused No. 3, Mohan Singh. They confined him inside and shut the door. Virendra Kumar (PW-1) and others kept on shouting from outside. After about half an hour, the three accused persons ran away. When Virendra Kumar (PW-1) and others went inside they saw that the boy was hung with a hook in the ceiling. His feet were dangling at the height of 4-5 feet from the floor and he was dead. Virendra Kumar (PW-1) then informed the police by lodging an FIR.

(3.) The investigation was taken up by Chandra Shekhar Yadav (PW-4). He reached the spot, did the necessary formalities and sent the body for autopsy. As many as five ante-mortem injuries were found on the dead body during the post-mortem which was conducted by Dr. Jugal Kishore Sharma (PW-3). These injuries were in the nature of large abraded contusions. On internal examination his hyoid bone was found fractured. As per the opinion expressed, the boy died due to asphyxia as a result of throttling. After the investigation, charge sheet was filed. The prosecution examined Virendra Kumar (PW-1), Shyam Ji Pandey (PW-2) as eye- witnesses while Dr. Jugal Kishre Sharma who had conducted autopsy on the dead body of deceased was examined as PW-3. In addition to this, police witnesses were also examined. The accused abjured the guilt. The trial Court, however, acquitted the accused persons dis-believing the eye witnesses and held that their presence was doubtful. He also held that the conduct of Virendra Kumar (PW-1) was unnatural. The trial Court also observed that the prosecution had failed to examine S.K. Srivastav advocate, another eye witness.