BHEEMAL Vs. STATE OF U P

JUDGEMENT

(1.) S. S. Kulshrestha, J. This appeal has been brought against the judgment and order dated 18-11-2006 passed by the Additional Sessions Judge, Court No. 7, Deoria in ST. No. 84 of 2006, State v. Bheemal and four others, whereby convicting them under Section 302 read with Section 34 IPC and awarding death sentence to each of them.

(2.) IT is said that the Additional Sessions Judge committed a serious error in holding it to be a homicidal death of Rajendra s/o Congress Chawhan, the informant of this case when the post- mortem report and the opinion of the doctor clearly refer it to be a suicidal death. The prosecution had also deliberately withheld the material evidence as a result whereof the appellants suffered grave prejudice. The appellants have been roped into this case because of enmity. Further inconsistencies in the deposition of the witnesses were not taken into consideration. The case is totally based on circumstantial evidence and the conclusion was wrongly drawn. Whatever the evidence adduced by the prosecution was not consistent with the hypothesis of the guilt of the accused. The geneses of the occurrence and the trifle dispute, which gave rise to the occurrence, belie the prosecution case of the appellants intended to cause the death of the deceased.

(3.) PROSECUTION further examined formal witness namely Shyam Mohan Tripathi, Head Constable (PW-6) who recorded the intimation in G. D. No. 10 at 7. 15 a. m. vide Exhibit Ka-16 and registered the case at crime No. 102/05 under Sections 302/34 IPC and also the Chick No. 42/05 vide Exhibit Ka-5. The G. D. at Rapat No. 10 recorded on 12-5-2005 vide Exhibit Ka-6 was also proved by him. C. P. Tirth Raj alongwith other papers had taken the dead-body of the deceased to the hospital for post-mortem. PW-8 G. P. Singh, S. I. had taken the photographs of the dead-body of the deceased and also got the inquest report prepared from Hira Singh, S. I. That inquest report (Exhibit Ka-2) was proved by this witness. PW-9 Mahesh Yadav is a witness of the recovery of rope and Hasia from the house of accused Bheemal. He proved its Fard (Exhibit Ka-3 ). Dr. B. S. Srivastava (PW-11) conducted the autopsy of the dead-body of the deceased and found the following ante-mortem injuries to have been sustained by the deceased : Ligature mark present on the upper part of Neck above the hyoid bone. Encircling outer part of neck obliquely placed. (L) side above the (R) discontinuing on the back of Neck 17 cm length 2 cm breadth blackish Parchment like. It was also noticed by the doctor that food contents were coming out from his mouth and cervical vertebra was found not displaced. Cause of death was opined due to asphyxia as a result of hanging. He also proved the post-mortem report (Exhibit Ka-15 ). Mohd. Naseem Khan (PW-10) had recorded the statements of the witnesses in the course of investigation and after extensive investigation charge-sheet was submitted by him against the accused persons. As a result of the investigation the accused appellants were sent for trial. All the appellants denied their complicity for the offence charged with and stated that they have been falsely implicated. The conviction of the appellants is based on circumstantial evidence.