STATE OF U P Vs. JAI PRAKASH

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of the Division Bench of the Allahabad High Court, directing acquittal of the respondent by setting aside the judgment of conviction and sentence passed by learned III Additional District and Sessions Judge, Aligarh in Sessions Trial No.391/1979. Accused was convicted for offence punishable under Sections 302, 364 and 201 of the Indian Penal Code, 1860 (in short the IPC). He was awarded life imprisonment for each of the first two offences and five years RI for the last one. All the sentences were directed to run concurrently.

(2.) Sans unnecessary details prosecution version as unfolded during trial is as follow: In the morning of 21-2-1978 the accused-respondent was found talking with Nuruddin (hereinafter referred to as the deceased) at about 9 O clock in front of his house where he was playing. The accused-respondent allegedly took him with him and thereafter Nuruddin was not seen and his dead body was recovered in the night from a well. Natthu Singh (PW-4) had allegedly seen in the same forenoon the deceased- Nuruddin going on a cycle with the accused-respondent. Smt. Khatoon (PW-3) mother of the deceased-Nuruddin had also seen Nuruddin with the accused-respondent outside her house at about 9 A.M. She had also seen him going with him. Thereafter, only his dead body could be recovered from a well. Amina (PW-8) had also seen Nuruddin talking with the accused-respondent outside her house in the morning of the day of the incident. Allahdin (PW-2) had gone to Hathras to sell iron nails and had returned home at about 5 P.M. His wife Smt. Khatoon (PW-3) had then told him that Nuruddin had not been seen since morning and that the accused-respondent had taken him. He was also informed by Natthu Singh (PW-4) and others that they had seen the deceased going on a cycle with the accused-respondent. He had then lodged the report the same night at 9.10 P.M. The dead body of the deceased was recovered from the well of Raja Ram the same night at the instance of the accused-respondent who had allegedly been arrested by the SI Naresh Pal Yadav (PW-7) who had reached the village of the incident at about 10 P.M. Balbir (PW-6) was a witness of the recovery of the dead body of the deceased from the well at the instance of the accused and in consequence of the disclosure made by him under Section 27 of the Indian Evidence Act, 1872 (in short Evidence Act). The case was initially registered under Section 364 IPC but was subsequently converted additionally under Section 302 IPC and Section 201 IPC on the recovery of the dead body. The dead body was subjected to postmortem which was conducted on 22-2-1978 at 3 P.M. by Dr. S.K. Saxena (PW-1). The deceased was aged about 7 years and about 1 1/2 day had passed since he died. The following ante-mortem injuries were found on his person:

(3.) In appeal, the appellant urged that the version of prosecution is clearly unbelievable. If the accused had the motive the scenario as described by the prosecution does not fit in. The High Court noted if the accused was harassing PW-3 and the deceased was asked to accompany her, it is highly improbable that mother of the deceased would like the deceased to go with the accused. So far as the evidence of PW-4 is concerned it was noted that he had not statedRs. before the Investigating Officer that the deceased was being carried by the accused at bicycle. Accordingly the High Court directed acquittal.