STATE Vs. MADAN BISHWAS & ORS.

JUDGEMENT

(1.) THE State seeks leave to appeal against the judgment dated 30.08.2011 passed by the learned Additional Sessions Judge (ASJ), Saket New Delhi in Sessions Case No. 24/2006 whereby the learned ASJ acquitted the respondents (accused before the trial court) of the charge for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (IPC). According to the case of the prosecution DD No. 5 (Ex. PW -9/A) was recorded at PP Madanpur Khadar to the effect that a person was lying unconscious on the slope at Kalandi Kunj, Jaitpur road, near Sukhpal Property Dealer. The DD was assigned to ASI Chaman Singh who along with Constable Virender reached the spot. The ASI noticed that a dead body was lying at the spot. Since there was no apparent mark of injury and no eye witness was available and there was none to disclose about the identity of the deceased, the dead body was sent to AIIMS mortuary with a request to preserve the same for 72 hours. Crime team was also requisitioned at the spot.

(2.) UNAWARE of the death of his brother Kamal, Mukesh Kumar (PW -1) reached PS Sarita Vihar at 12:00 in the night of 16 -17.10.2005 and informed that his brother had left for his duty to MCD office, Central Zone, Lajpat Nagar Delhi on 15.10.2005 at 10:00 A.M. in his Maruti car No. DL -6CC -2345 and that he had not returned. In the police report PW -1 did not raise any suspicion against any person. On 17.10.2005 Kamal's (deceased's) relatives gathered at PW -1 and Kamal's house. PW -1 along with some relatives visited the house of respondent Aneesh's in -laws. PW -1 met Aneesh's wife and one Taruk (Aneesh's brother in -law) (PW -6). Taruk took PW -1 to PP Madanpur Khadar where he (PW -1) was informed that his brother Kamal had died and his dead body had been recovered from Kalandi Kunj. He (PW -1) identified the photographs of the dead body. On 18.10.2005 PW -1 and one Shailender Kumar identified the dead body in the mortuary.

(3.) ACCORDING to the statement made by PW -1 to the police thereafter he lodged a missing report with the police. On 17.10.2005 while he was passing through Madanpur Khadar to inquire about his brother Kamal he came to know that a dead body had been found near Pushta Jaitpur. He went to the mortuary on 18.10.2005 and identified the dead body. He informed the police that since Aneesh had absconded there is a possibility that he may be involved in the conspiracy to kill his brother Kamal. On the basis of the statement Ex. PW -1/B given by PW -1 the present case was registered and investigation was carried out. During the course of investigation police met Taruk who took the police party to the house of respondent Madan Bishwas. Respondent Madan Bishwas was arrested. He (Madan Bishwas) allegedly pointed out the place of occurrence and got recovered a pair of shoes (belonging to the deceased Kamal) from the bushes near the place of incident.