STATE Vs. VIKAS @ BHOLA

JUDGEMENT

(1.) Present petition for leave to appeal has been filed by the State under Section 378(1) of the Code of Criminal Procedure, 1973 against the judgment passed by the learned Additional Sessions Judge on 22.12.2011 in case FIR No. 458/04, under Section 302/34 of the Indian Penal Code (IPC), whereby the respondents have been acquitted of the charge. The relevant facts, as noticed by the trial court are that the deceased (Hari Prakash Tyagi) was running a shop by the name of Tyagi Spare Parts at WZ-154, Ground Floor, Main Najafgarh Road, Uttam Nagar. He was last seen at the shop on 04.06.2004 at 3.00 pm by complainant Harkesh Sharma PW-3, who was running his shop on the first floor above the shop of the deceased. On 07.06.2004, the complainant PW-3 felt a stink was coming from the shop of Hari Prakash Tyagi. He got suspicious and informed the brother of the deceased. At about 8.00 pm, brothers of the deceased, Nirajan Tyagi PW-5 and Laxman Tyagi PW-9 came at the shop along with Jai Kumar (nephew of deceased) and the lock of the shop was got broken. Upon checking, the body of the deceased was found from the box of Diwan lying in the shop. The body was in a decomposed condition and there were sharp injury marks on his stomach and neck. Blood was flowing on the floor. Thereafter, police was informed and on the basis of statement given by the complainant (Ex. Pw-3/A), FIR was recorded under Section 302 IPC. During investigation, it was found that the relations between the deceased and his wife and children were not good and the deceased was residing in his shop while his wife and children were residing separately at Village Narsingh Pura. Since last about 11/2-2 years, respondent no. 1 Vikas (son of the deceased) started visiting the deceased Hari Prakash and used to take money from him for his expenses. A quarrel had also taken place between the deceased and his son Vikas, on the question of money but later on he sought an apology from the deceased. On 22.05.2004, respondent no. 1 brought Chhach (lassi) in a bottle for Hari Prakash but he did not consume the same as he had already taken food. One Mahesh Sharma PW-21, who was sitting with the deceased, found the lassi to be bitter and at the asking of Hari Prakash when he went to throw the lassi, a footpath tea vendor, Sher Singh PW-2 asked him to give chhach to him. On taking the chhach, Sher Singh became unconscious and was rushed to a doctor who administered him glucose and gave him an injection. The deceased told Mahesh Sharma that his son Vikas had mixed poison in the chhach with a view to kill him. Nilesh Kumar (PW-10), nephew of deceased, stated that about two months ago respondent no. 1 had asked him to get the share of Hari Prakash in the plot at Village Jhatikra transferred in his name. When Nilesh (PW-10) asked about this to his father, he refused. Nilesh further stated that respondent no. 1 Vikas had asked him about a medicine which could cause death. On the basis of this information, the I.O., Inspector R. Chandran PW-31, issued notice to respondent no. 1 Vikas under section 160 Cr.P.C. During interrogation, Vikas confessed his guilt and was arrested. Subsequently, his disclosure statement was recorded wherein he named respondent no. 2 Anil Kumar and stated that they had thrown their clothes and gloves in a polythene bag near Neha Toka Factory at G.T. Road, Sonepat from the puliya and had thrown the knife in the bushes at a little distance away from the said place. Thereafter, respondent no. 2 Anil Kumar was arrested and both the respondents got recovered their clothes soaked with blood. From the pocket of pajama of respondent no. 1 Vikas, a key of the lock of shop was recovered. A dagger type knife (weapon of offence) was also recovered at the instance of respondent no. 1. Exhibits were sent to FSL. On completion of investigation, charge sheet was prepared under Section 302/34 IPC.

(2.) The respondents pleaded not guilty to the charge, upon which the prosecution examined 34 witnesses to bring home the guilt of the respondents. The prosecution has relied on four circumstances, which the trial court has recorded in Para 5 of the judgment which reads as under:

(3.) Mr. Saleem Ahmed, learned counsel for the State, submits that the learned trial court has passed the impugned judgment on hypothetical presumptions, conjectures and surmises and the order is perverse and lacks legality. Counsel further submits that the Ld. Trial Court failed to appreciate the evidence led by the prosecution witnesses and wrongly applied the law on wrong assumptions.