VIJAI NAI Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Adarsh Mehrotra, learned Amicus Curiae for the appellant and Sri Pawan Kumar Mishra, learned AGA for the State.

(2.) This Criminal Appeal under Sec. 374(2) of Criminal Procedure Code (hereinafter referred to as Cr.P.C.), has been filed assailing the judgment and order dtd. 18/5/2009 passed by Additional Sessions Judge/Special Judge, E.C.Act, Unnao in Sessions Trial No.230/2007 (The State versus Vijai Nai and Three Others), arising out of Case Crime No.508/2006, under Ss. 394, 302/34, 201, 411 Indian Penal Code(hereinafter referred as IPC),Police Station Ganga Ghat, District Unnao, by means of which the appellant has been convicted under Sec. 394, 302/34, 201, 411 IPC, sentencing him life imprisonment and fine of Rs.5,000.00 under Sec. 302 of IPC, ten years rigorous imprisonment and fine of Rs.5000.00 under Sec. 394 IPC, three years rigorous imprisonment under Sec. 411 IPC and five years rigorous imprisonment and fine of Rs.1000.00 under Sec. 201 IPC and in default of payment of fine, one year additional imprisonment. It has further been provided that all the sentences shall run concurrently.

(3.) Learned counsel for the appellant submitted that the impugned judgment and order has been passed without considering the evidence and material on record appropriately. He further submitted that it was a case of circumstantial evidence and last seen, as there is no eye witness to the occurrence and the chain of circumstances is neither complete nor does it unerringly refer to the guilt of the appellant but the appellants have been convicted and sentenced by means of the impugned judgement and order. He further submitted that there was no motive against the appellant for committing the murder of driver and cleaner of the truck, specially when the grievance of the appellant could have been against the truck owner. He further submitted that the post mortem report has also not supported the prosecution case because as per the doctor, both the deceased died on account of strangulation and it was not possible for a single man to strangulate two persons at one time, that too, in a running truck. He further submitted that there is contradiction in the evidence of the witnesses of fact, but the learned trial court has failed to appreciate the same and wrongly and illegally relied on the evidence of such witnesses. He further submitted that recovery of jack and weapon of assault has not been proved and finger prints were also not taken from the recovered jack. He also submitted that though the truck was recovered but the scrap loaded in the truck was not recovered and the police has failed to recover the same. He further submitted that any of the family member of the victim has not been produced and it has not been clarified as to whether the dead bodies could have been identified in the condition in which it were found or not. Thus, learned counsel for the appellant submitted that the impugned judgment and order has been passed recording erroneous and perverse findings in an illegal manner, which are not sustainable in the eyes of law and liable to be set aside. Thus, the impugned judgment and order of conviction and sentence is liable to be set aside. The appeal is liable to be allowed and the appellant is liable to be acquitted. He relied on Rambraksh alias Jalim versus State of Chhatisgarh; AIR 2016 SC 2381, Kalinga @ Kushal versus State of Karnataka by Police Inspector Hubli; (2024) 4 SCC 735, Tomaso Bruno versus State of U.P.; AIR 2015 SC (Supp) 412, Anter Singh versus State of Rajasthan; (2004) 10 SCC 657, Shyamal Saha versus State of West Bengal; 2014 AIR SCW 4984, State of Karnataka versus Chand Basha; AIR 2015 SC(Supp) 2150, Ram Pratap versus State of Haryana; AIR 2023 SC 719, State of Rajasthan versus Hanuman; 2025 Live Law (SC) 691, Govind versus State of Haryana; 2025 Live Law (SC) 1106 and Nanje Gowda versus State of Karnataka by Arkalgud Police; 2017 Cri. L.J. 2830.