SURAJ Vs. STATE

JUDGEMENT

(1.) These appeals assail the impugned judgment dtd. 28/2/2014 convicting the appellants for offences punishable under Sec. the appellants to life imprisonment for the offence punishable under Sec. 302 IPC and rigorous imprisonment for two years for the offence punishable under Sec. 201 IPC. Both sentences were to run concurrently. The Incident

(2.) As per the case of the prosecution, a police patrol on 11/2/2011 found a dead body in Ruchi Vihar Forest. As per the rukka Ex. PW-13/A, the FIR No.36/2011 was registered by PS Vasant Kunj (South). Since, no ID was found on the deceased, a hue and cry notice with the photograph of the deceased led to his identification as one Bansidhar Patra by his office colleagues. Further investigation revealed the involvement of the labour contractors with the employer of the deceased (M/s Saundraya Decorators) and subsequent recovery of mobile phone and ATM cards of the deceased from the appellants. The investigation was concluded, and charge-sheet was filed against the appellants. Charges were framed under Sec. 302/201/34 IPC to which the appellants pleaded not guilty and claimed trial. 32 witnesses were examined by the prosecution in support of the case, the statements of the appellants were recorded under Sec. 313 Cr.P.C. and the evidence of one witness was led in defence by appellant Suraj@Sonu. Submissions on behalf of the Appellants

(3.) The counsel for the appellants contended that the evidence was highly insufficient to convict the appellants by the impugned judgment of the learned Trial Court. The police officials had not properly investigated the matter qua the appellants and had instead, based only on circumstantial evidence, concocted a false and frivolous story and arrested the appellant/s without his being involved in the case. According to the learned counsel, there was no evidence or witness which would show that the deceased was last seen alive in the company of the appellant/s and hence the theory of the last seen as part of the chain of the circumstances was not available to the prosecution. As per the case of the prosecution, it was contended that there is only the recovery of the ATM card of the deceased from the possession of the appellant and an alleged withdrawal of money from the ATM card. The same, it was contended, is planted as there is no independent witness of the recovery of the said ATM card from the possession of the appellant. Even the CCTV footage of the ATM which the prosecution relied upon was discredited by the testimony of PW-10, the Branch Manager who said he was not able to identify any of the persons in the footage. There was an indication that the number used by appellant Sonu (9818162060) was called by the deceased, which was identified by PW-4 as that belonging to appellant Sonu, however, the said number was in the name of one Ganesh, as per the testimony of PW-9 the Nodal Officer from Bharti Airtel Limited, who had not been examined. Appellant Sonu had in fact in his statement recorded under Sec. 313 Cr.P.C. categorically responded in answer to question No.71 that this phone number was never used by him and did not belong to him. Further, no details of location charts had been exhibited by the prosecution.