STATE Vs. RAFAT AHMED ALIAS SAHIL ALIAS CHAND

JUDGEMENT

(1.) THE State seeks leave to appeal against a judgment and order of the learned Addl. Sessions Judge dated 30.09.2010, acquitting the respondent of the charge of having committed offence punishable under Section 302 IPC.

(2.) THE prosecution's allegations were that the respondent had inflicted knife injuries upon one Jang Bahadur Yadav and fled from the spot. THE latter was found in a critically injured condition at Loha Mandi, opposite Bentex. Information about the incident was recorded through a D.D. entry 32A (Ex.PW-7/A) at 10.30 PM. THE injured Jang Bahadur Yadav, (whose identity was ascertained after his Identity Card was recovered from his personal effects by the police), was taken to the DDU Hospital, where he breathed his last. THE doctor, who examined the deceased, did not record any statement. THE injured - Jang Bahadur Yadav apparently stated that he was attacked by some unknown assailants. A First Information Report (FIR), namely 133/2009 (Ex. PW-8/A) was initially registered at Police Station Naraina in respect of offence punishable under Section 324 IPC. After Jang Bahadur Yadav died, the allegation was modified to the offence under Section 302 IPC. THE police conducted investigation and after recording statements of several witnesses, including Ravis Rana, PW-1, the Team Leader of the concern (Intouch Solution Private Limited, where Jang Bahadur Yadav used to work), arrested the respondent/accused on 26.09.2009. THE prosecution's allegations were that on account of a love interest with Sonia, the deceased nursed a grudge against the accused. Sonia apparently had committed suicide and the deceased felt that the accused was responsible for that event. THE prosecution, therefore, alleged that the accused respondent was responsible for the murderous attack on the accused, with whom he had an altercation and heated exchange of words. Placing reliance on the theory of "last seen" and circumstantial evidence, the prosecution filed its report, accusing the respondent of committing Jang Bahadur Yadav's murder. THE Trial Court framed charges. THE respondent entered the plea of not guilty and claimed trial. THE prosecution relied upon the testimonies of more than 22 witnesses and material exhibits. After duly considering them, the Trial Court held that the prosecution was unable to establish the respondent's guilt beyond reasonable doubt and acquitted him.

(3.) SO far as the testimony of the last seen was concerned, we notice that even though the prosecution argued that PW-3 was a material evidence in that regard, the facts alleged nowhere made-out such a case. PW-3 was the deceased's brother; he lived in a separate premises. The Trial Court noticed in this regard that the witness, PW-3: