TRIVENI @ BENI Vs. STATE OF U P

JUDGEMENT

(1.) HEARD counsel for the appellants, learned A.G.A., Sri Hemendra Kumar, learned counsel for the complainant and perused the lower court record.

(2.) THE appellant Triveni @ Beni has preferred the Criminal Appeal No. 2877 of 2013 and the appellant Umesh Tiwari preferred the Criminal Appeal No. 2970 of 2013 against the judgement and order dated 31.5.2013 passed by learned Sessions Judge, Chitrakoot in S.T. No. 17 of 2009 whereby the accused respondents have been convicted for the offence punishable under sections 302/34 and 201 IPC. Both the appellants have moved their bail applications separately in their appeals. Therefore, both the bail applications are being disposed of by a common order.

(3.) HAVING heard learned counsel for the appellants, learned A.G.A. for the State of U.P., learned counsel for the complainant and perusing the record it reveals that the FIR of this case has been lodged by Sri Ramji on 3.11.2008 at 10.35 A.M. in respect of the incident allegedly occurred on 2.11.2008 at 4.00 P.M. and thereafter alleging therein that on 2.11.2008 at about 4.00 P.M. The deceased was called by the appellants and he was taken by them to their village, when the deceased did not return up to evening his search was made and inquiry was made by family members of the appellant Umesh and came to know that he had gone to village Saipur and had not returned. Thereafter the first informant and others went to village Saipur, where came to know that dead body of the deceased was lying into well which was in front the house of appellant Triveni @ Beni. After lodging the FIR the police came to the place of the incident on 3.11.2008 and dig out the dead body from the well, thereafter the inquest report was prepared on 3.11.2008. On the same day the recovery of small dairy belonging to the deceased was also made from the well and from the house of the appellant Beni Shukla one pair chappal, Jaghiya of the deceased, three steel plates and one Katori in which Juthan of vegetable and chatani was found and one empty bottle of the liquor was found from the courtyard of the appellant Beni Shukla. According to the post mortem examination report an abrasion was found as an ante mortem injury, the cause of death could not be ascertained, hence viscera was preserved. At the stage of the trial eight witnesses have been examined in which P.W. 1 Ram Ji, P.W. 2 Kamlesh Kumar, P.W. 3 Shiv Autar and P.W. 4 Janardan have been examined as witnesses of the fact. P.W. 1 is first informant, P.W. 2 Kamlesh Kumar was the Pradhan of the village Saipur. According to his deposition the dead body of the deceased was recovered on 3.11.2008 from the well of Shiv Shanker Tiwari with a small pocket dairy of the deceased. Its recovery memo was prepared which was signed by him and on the same day a steel bowl, three old used steel plates, one pair old sleeper and underwear of the deceased were recovered from the courtyard of the appellant Beni Shukla. In his presence its recovery memo was prepared which was signed by him as witness. He further stated that the above mentioned recovery was made from the house belonging to Smt. Asha Devi, the aunt of the appellant Triveni @ Beni in which the co -accused persons was living at the time of the incident. According to the deposition of P.W. 3 Shiv Autar, the father of the deceased, the deceased was called from his house by the appellant on 2.11.2008 at about 8.00 P.M. and the dead body of the deceased was recovered from the well situated in village Saipur. He deposed that nothing was made from the house of appellant Umesh. According to the deposition of P.W. 4 Janardan, in his presence at about 4.00 P.M. on 2.11.2008 the deceased had gone in the company of the appellants, he did not come back thereafter the inquiry was made from the house of the appellant Umesh Tiwari, on search he along with other persons came to village Saipur and found the dead body lying in a well situated in front the house of the accused appellant Triveni @ Beni. The remaining witnesses are formal witnesses. According to the evidence deposed, the evidence of the last seen is against the appellants and from the house of the appellant Beni @ Triveni a pair chappal and underwear of the deceased was recovered along with the bowl, the plate and empty bottle of the liquor. There is no evidence against the appellants. The case of the appellant is based on the circumstantial evidence. There is no eye witness account. In such circumstances, the appellants are entitled for bail.