KURBAN Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) By filing these appeals, the appellants, who happens to be the complainant in the original case and the State of Uttarakhand has assailed the judgment of acquittal recorded by the learned IIIrd Additional Sessions Judge, Haridwar, on dtd. 31/1/2013 in Sessions Case No. 145 of 2000, arising out of Case Crime No. 301 of 1999 for the offence under Ss. 302, 201, 364 of the Indian Penal Code, 1860 (hereinafter referred to as "the Penal Code" for brevity). Two charge-sheets were submitted and, hence, two cases were initiated. Since the FIR was originally filed under Ss. 302, 201, 364 of the Penal Code, the Investigating Officer later on submitted a charge-sheet also under Sec. 4/25 of the Arms Act, 1959 (hereinafter referred to as "the Arms Act"), for which a separate Sessions trial has been initiated, though, the entire trial has been taken analogously, and was disposed by a single judgment.

(2.) The case of the prosecution, in short, is that on 1/11/1999, both the respondents came to the house of the informant-Kurban, and took away the appellant on the pretext of visiting the garden. It is also stated that there are some disputes between the deceased and the two respondents. Therefore, when the deceased did not return, the complainant enquired about his whereabouts, but, could not find him. Then, on 14/11/1999, a Village Panchayat was called, where both the respondents-Naushad and Rizwan confessed their guilt and stated that they have committed murder by means of a knife, and buried his dead body in the burial ground. Thereafter, an FIR was lodged on 14/11/1999 itself. Both the respondents were arrested, and it is alleged that they led to recovery of a dead body, which was in a very high state of decomposition. But, it was identified by the complainant and his son when it was exhumed from the burial ground in the presence of a Magistrate. The body was recovered on the pointing out on the respondent-Rizwan, and a knife was recovered on the pointing out on the respondent-Naushad. Thereafter, the dead body was despatched for the post-mortem examination. Upon post-mortem examination the doctor could not give any definite opinion on the cause of death of the deceased, as the dead body was in a highly decomposed state. However, he preserved the Viscera of the deceased and sent it for serological/chemical examination, whereupon, it was found that the visceras contains Organophosphorus insecticides. Thereafter, the Investigating Officer submitted a charge-sheet against both the respondents for the offence under Ss. 302, 201, 364 of the Penal Code read with Sec. 4/25 of the Arms Act.

(3.) The defence, in this case, took the plea of simple denial and false accusation. They also stated, in the statements under Sec. 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for brevity), that the deceased was betrayed by his lover and, therefore, he consumed poison. The prosecution, in order to prove its case examined 12 witnesses and led into evidence several documents as Exhibits.